9911796707
TMI Blog2024 (9) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the PMLA Act but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence - inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India. It is also required to be noted that the Applicant is 72 years old and is suffering from cancer. The Applicant states that as several witnesses are residing in the same locality as that of the Applicant, the Applicant will therefore not reside within District - Pune and that the Applicant will reside at the residence of Mr. Shivajirao Patil, R/o. Vikram Bungalow, Chintamani Nagar, Madhavnagar Road, Sangli 416 416 and will attend the Sanjay Nagar Police Station, Sangli - The Applicant does not appear to be at risk of flight. The Applicant can be enlarg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 That, Shivajinagar Police Station, Pune registered FIR No. 0026/2020 dated 08.01.2020 against Mr. Anil Shivajirao Bhosale, Mr. Suryaji Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr. Shailesh Sampatrao Bhosale and others on the basis of complaint filed by the Complainant Mr. Yogesh Rajgopal Lakade, Chartered Accountant (Partner of M/s. Torvi Pethe Co.) invoking Sections 420 read with Sections 34, 406, 408, 409, 468 and 471 of Indian Penal Code, 1860 (hereinafter referred to as the IPC, 1860 ). 7.2 That, it is alleged in the FIR that RBI team during their periodical visit at head office of M/s. Shivajirao Bhosale Co-operative Bank Ltd. at Pune on 26.04.2019, noticed various discrepancies in records/books of accounts of the bank. Further, the RBI vide letter dated 16.05.2019 had given direction to M/s Torvi Pethe Co. (Chartered Accountant Firm and Statutory auditor of the Bank) for verification of cash record of all the branches and head office of the Bank. Accordingly, on 25.05.2019 27.05.2019, statutory auditor verified all available cash of the branches and head office of the bank with their respective cash books. The Statutory auditor noticed that the entry of cash of Rs. 71.78 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was revealed that Anil Shivajirao Bhosale, the present applicant i. e. Suryaji Pandurang Jadhav (Accused no. 3), Mr. Tanaji Dattu Padwal and Mr. Shailesh Sampatrao Bhosale being the Chairman, Director, CEO and Officer of M/s. Shivajirao Bhosale Sahakari Bank Ltd. respectively were the mastermind behind activities connected with the proceeds of crime and under their directions the proceeds of the crime was projected as untainted property. 4. It is the submission of Mr. Ponda, learned Senior Counsel for the Applicant that insofar as the scheduled offence is concerned, the Applicant has already been granted bail by a learned Single Judge by Order dated 02.03.2023 passed in B. A. No. 2006 of 2021. He submits that the Applicant was arrested in scheduled offence on 24.02.2020 and in the present case, he is in custody since 05.03.2021. He submitted that the Applicant is incarcerated for more than 4 years and 7 months. He submits that in PMLA Case, the Applicant has completed 3 years and 6 months on 05.09.2024. He submitted that insofar as the present case is concerned, the maximum punishment which can be awarded is 7 years, out of which the Applicant has already completed half of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not entitled to be released on bail in view of Section 45 of the PMLA. Mr. Shirsat, learned APP for Respondent No. 1 ED has relied on the Judgment of the Supreme Court in the case of Tarun Kumar vs. Assistant Director, Directorate of Enforcement SLP (Cri.) No. 9431 of 2023. 7. A perusal of the record shows that insofar as the scheduled offence is concerned, C. R. No. 0026/2020 was registered on 08.01.2020 under Sections 420 r/w. 34, 406, 408, 409, 465, 468, 471 of the Indian Penal Code, 1860 ( IPC ). The present case is ECIR/MB/ZO-II/03/2020 registered under Section 3 r/w. 70 of the PMLA. The Applicant has been arrested in scheduled offence on 24.02.2020 and the date of arrest in the present offence is 05.03.2021. Thus, the Applicant has completed 4 years and 6 months from the date of arrest in the scheduled offence, wherein he has been granted bail by a learned Single Judge by Order dated 02.03.2023 passed in B. A. No. 2006 of 2021. 8. Insofar as the present offence is concerned, the Applicant is incarcerated since 05.03.2021. Thus, the Applicant has completed 3 years and 6 months on 05.09.2024. Admittedly, insofar as the present offence is concerned, the maximum punishment is 7 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout warrant, subject to the fulfilment of conditions under Section 19 and subject to the conditions enshrined under this section.] 10. Thus, as per Section 45 of the PMLA Act, the following requirements are mandatory to be complied with before releasing the accused on bail: (i) The Public Prosecutor is to be given an opportunity to oppose the Application seeking bail; (ii) Where the Public Prosecutor opposes the Application : (a) The Court is required to record satisfaction that there are reasonable grounds for believing that the Applicant is not guilty of such offence; (b) The Court is required to record satisfaction that the Applicant is not likely to commit any offence while on bail. 11. In this Bail Application, the Respondent No. 1 ED filed affidavit opposing the Bail Application and Mr. Shirsat, learned APP for Respondent No. 1 has opposed the Bail Application. Thus, requirement as set out in Clause (i) hereinabove is satisfied. Thus, now what is required to be seen is whether twin conditions as contained in Clause (ii) noted hereinabove are fulfilled and effect of the said twin conditions on the entitlement of the Applicant in getting bail. 12. In this background of the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al for more than the maximum period of imprisonment provided for the said offence under that law. Explanation .-In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded.] 415. In Hussainara Khatoon v. Home Secretary, State of Bihar, Patna, this Court stated that the right to speedy trial is one of the facets of Article 21 and recognized the right to speedy trial as a fundamental right. This dictum has been consistently followed by this Court in several cases. The Parliament in its wisdom inserted Section 436A under the 1973 Code recognizing the deteriorating state of undertrial prisoners so as to provide them with a remedy in case of unjustified detention. In Supreme Court Legal Aid Committee Representing Undertrial Prisoners v. Union of India, the Court, relying on Hussainara Khatoon, directed the release of prisoners charged under the Narcotic Drugs and Psychotropic Act after completion of one-half of the maximum term prescribed under the Act. The Court issued such direction after taking into account the non obstante provision of Section 37 of the NDPS Act, which im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de which is a wholesome provision beneficial to a person accused under the 2002 Act. However, Section 436A of the 1973 Code, does not provide for an absolute right of bail as in the case of default bail under Section 167 of the 1973 Code. For, in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself. 417. Be that as it may, in our opinion, this provision is comparable with the statutory bail provision or, so to say, the default bail, to be granted in terms of section 167 of the 1973 Code consequent to failure period of the investigating agency to file the chargesheet within the statutory and, in the context of the 2002 Act, complaint within the specified period after arrest of the person concerned. In the case of Section 167 of the 1973 Code, an indefeasible right is triggered in favour of the accused the moment the investigating agency commits default in filing the chargesheet/complaint within the statutory period. The provision in the form of Section 436A of the 1973 Code, as has now come into being is in recognition of the constitutional right of the accused regarding speedy trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release, the accused makes himself/herself available for expeditious completion of the trial. 420. However, that does not mean that the principle enunciated by this Court in Supreme Court Legal Aid Committee Representing Under trial Prisoners, to ameliorate the agony and pain of persons kept in jail for unreasonably long time, even without trial, can be whittled down on such specious plea of the State. If the Parliament/Legislature provides for stringent provision of no bail, unless the stringent conditions are fulfilled, it is the bounden duty of the State to ensure that such trials get precedence and are concluded within a reasonable time, at least before the accused undergoes detention for a period extending up to one-half of the maximum period of imprisonment specified for the concerned offence by law. [Be it noted, this provision (Section 436A of the 1973 Code) is not available to accused who is facing trial for offences punishable with death sentence] 421. In our opinion, therefore, Section 436A needs to be construed as a statutory bail provision and akin to Section 167 of the 1973 Code. Notably, learned Solicitor General has fairly accepted during the arguments and also res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. (Emphasis added) 15. The Supreme Court in the case of Manish Sisodia (supra) held as follows : 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State of Punjab, Hussainara Khatoon (1) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb and Satender Kumar Antil v. Central Bureau of Investigation. The Court observed thus: 19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g pronounced guilty of an offence should not be permitted to become punishment without trial. (Emphasis added) 16. Thus, as per the settled legal position whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail as enacted under Section 45 of the PMLA Act but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. 17. Thus, inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India. 18. As far as the scheduled offences are concerned i.e. C. R. No. 26 of 2020, there are about 256 witnesses proposed to be examined by the prosecution. Insofar as the present case is concerned, 9 witnesses are proposed to be examined by the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tares 2 Village Koregaon, Tal - Haveli, Dist Pune 1.89 Hectares 3 Village Koregaon, Tal - Haveli, Dist Pune 1.46 Hectares Accordingly Fair Market Value /Reserve Price was decided on 22/11/2021. Sr.No. Survey No. Area Fair Market Value/ Reserve Price 1. Village Koregaon, Tal - Haveli, Dist 2.5 Hectare Rs. 27,85,18,500 2. Pune Village, Koregaon, Tal-Haveli Dist 1.89 Hectare for 1.89 Hectare Price was decided @ Rs 22,60,44,000/- and for 00.5 hectare @ Rs. 3. Village Koregaon, Tal-Haveli, Dist 1.46 Hecatre Rs. 23,57,31,600 4. Total: 74,54,07,000/- Auctions were conducted on 1st April 2022, 20th April 2022, 26th May 2022, 15 June 2022 and 15 July 2022 and Reserve price was set at Rs. 59,63,25,600/- and the properties were auctioned for Rs. 60,49,74,709/-. On 15th July 2022, 15% of Rs. 60,49,74,709/- that would be Rs. 09,06,26,208/- was deposited in Bank via Demand Draft. Rest 85% of Amount i. e. Rs. 51,35,48,501/- minus TDS @1% Rs. 50,75,06,753.91 was deposited in the Bank on 12th August 2022. 20. It is also required to be noted that the Applicant is 72 years old and is suffering from cancer. 21. Mr. Ponda, learned Senior Counsel for the Applicant states that as several witnesses are re ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
