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TMI Blog2024 (10) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... will prevail and will apply in spite of rigors of Section 45 of the PMLA Act. The Supreme Court in Vijay Madanlal Choudhary vs. Union of India has held that Section 436A of the CrPC will apply even to the offences under the PMLA. Thus, what has been held is that in case of violation of Article 21 of the Constitution of India, the rigors of Section 45 of PMLA can suitably be relaxed. In the present case, the Applicant has been arrested in the scheduled offences on 24th February 2020. The Applicant has been arrested in the PMLA case on 5th March 2021 when he was in custoday in scheduled offences. Thus, the Applicant is behind bar for about 4 years and 8 months. As the Applicant has been arrested in the PMLA case on 5th March 2021 and therefore even if the date of arrest in the PMLA case i.e. 5th March 2021 is taken into consideration then also the Applicant is incarcerated for about 3 years and 7 months which is half of the maximum punishment (i.e. 7 years) prescribed for offence punishable under Section 4 of the PMLA. Thus, case is made for grant of bail to the Applicant on the ground of long incarceration - the Applicant can be enlarged on bail by imposing conditions - bail applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 436A of the CrPC. He submitted that the Applicant has been arrested in the scheduled offence on 24th February 2020 and in PMLA offence on 5th March 2021. He submits that the Applicant is incarcerated since 3 years and 7 months in PMLA offence. He submits that the maximum punishment under Section 4 of the PMLA is seven years and therefore, the Applicant is entitled for the benefit as provided under Section 436A of the Cr.P.C. 4. On the other hand, Mr. Venegavkar, learned Special Public Prosecutor strongly opposes the Bail Application. He raised the following contentions:- (i) He submitted that the contention raised by Mr. Kazi, learned Counsel appearing for the Applicant that the Applicant is entitled to be released on bail on merits as he is not the beneficiary and there is no recovery at the instance of the Applicant is contrary to the material on record. He submitted that material on record clearly shows that the Applicant is involved in very serious crime. (ii) Mr. Venegavkar, learned Special Public Prosecutor pointed out the statements of following witnesses:- (a) Mr. Santosh Sahebrao Kale, Loan Officer, Shivajirao Bhosale Sahakari Bank ( the said Bank ) (Page 87). (b) Mr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BI team was made by the head office of the bank on 04.05.2019 in their cash book. Further, in the head office of M/s Shivajirao Bhosale Co-operative Bank, the statutory auditor found less cash of Rs. 71.78 Crore than their cash book. The same was communicated to RBI and District Special Auditor Co-operative Dept., Pune by the statutory auditor. Consequently, the Complainant, Mr. Yogesh Rajgopal Lakade, Chartered Accountant (Partner of M/s Torvi Pethe Co.) had lodged the said FIR. 7.3. That, it is mentioned in the FIR that Mr. Anil Shivajirao Bhosale (Accused No. 2) who was the Chairman of Shivajirao Bhosale Sahakari Bank Ltd. had misused his position and conspired with the co-accused and siphoned off the amount totalling to tune of Rs. 71,78,87,723/- from Shivajirao Bhosale Sahakari Bank Ltd its branches for personal gains. 7.4. That, subsequently EOW, Pune City carried out investigation and filed charge sheet bearing No. 32/2020 dated 18.05.2020 before the Hon'ble Additional Sessions Judge, Special M.P.I.D Court, Shivajinagar, Pune against Mr. Anil Shivajirao Bhosale, Mr. Suryaji Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr. Shailesh Sampatrao Bhosale and others for constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... siphoning off. Mr. Tanaji Dattu Padwal was in direct contact with Anil S. Bhosale and Suryaji Pandurang Jadhav and used to receive instructions/calls/messages from them in respect of their cash requirement, and subsequently, the same instructions used to be passed on to branch manager of Shivajinagar Branch. He never complained to any regulatory body including RBI. He used to produce all the books of accounts of the bank before Auditors for audit purposes based on which Audit Reports of the Banks were prepared. Had the real figures condition of the bank been produced before the Auditors of the Bank for Audit, it could have saved the Shivajirao Bhosale Sahakari Bank Limited from such massive fraudulent activities and the interest of the depositors of the bank could have been protected. He, being an expert in banking sector, knew about al irregularities towards NPA, investment, cash embezzlement etc. but he never placed these facts before any regulatory bodies. Thus, the financial condition of the bank was adversely impacted, and it suffered huge loss for which the pity depositors have paid the price. He has been privy to the cheat the depositors of the Bank and has actively assisted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Tanaji dattu Padwal for making bogus entries for cash deposits in the bank account no. 1 and 2 of Anil S. Bhosale and his wife Mrs. Reshma Anil Bhosale. When he contacted Mr. Tanaji Dattu Padwal and apprised about the discrepancies at the branch, Mr. Tanaji Padwal said that this is in his knowledge, and it would be adjusted later on. Even, Mr. Tanaji Dattu Padwal instructed him to credit the account of Mr. Anil S Bhosale and Mrs. Reshma Bhosale with cash deposits as and when required. Mr. Tanaji Dattu Padwal instructed Mr. Vinod Paliwal for keeping 67 cheques pending for amount of Rs. 5,82,90,175/- without having insufficient balance in the account of Anil S. Bhosale. As per statement of Santosh Saherao Kale, he admitted that he used to get instructions from Mr. Anil Shivajirao Bhosale, Mr. Suryaji Pandurang Jadhav and Mr. Tanaji Dattu Padwal on landline phone of the office for illegal cash withdrawal from various branches of Shivajirao Bhosale Sahakari Bank Limited. Mr. Tanaji Dattu Padwal, even after imposing restrictions on 03.05.2019 by RBI on withdrawal of cash more than Rs 1000/-, had issued cheques to withdraw an amount of Rs 2.14 crores on various dates from the period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Applicant that the Applicant is not beneficiary and therefore, he is not involved in the crime. 10. However, it is required to be noted that in the scheduled offence the Applicant is incarcerated since 24th February 2020 and the Applicant has been granted bail by this Court vide order dated 7th October 2024 passed in Criminal Bail Application No. 2528 of 2023. As far as the offence under PMLA is concerned, the Applicant is incarcerated since 5th March 2021. Thus, the Applicant has completed imprisonment of about 3 years and 7 months. It is an admitted position that the punishment for offence punishable under Section 4 of the PMLA is rigorous imprisonment for not less than 3 years but which may extend to 7 years. Thus, the maximum punishment for the offence punishable under Section 4 of the PMLA is 7 years of rigorous imprisonment. The Applicant has completed 3 years and 7 months i.e. more than one-half of the maximum period of imprisonment specified for the offence alleged against him. 11. Section 436A of the CrPC provides as under: 436-A. Maximum period for which an undertrial prisoner can be detained. Where a person has, during the period of investigation, inquiry or trial u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. [ Explanation . For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under Section 19 and subject to the conditions enshri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for stringent regulatory measures for combating the menace of money-laundering. 413. There is, however, an exception carved out to the strict compliance of the twin conditions in the form of Section 436A of the 1973 Code, which has come into being on 23.6.2006 vide Act 25 of 2005. This, being the subsequent law enacted by the Parliament, must prevail. Section 436A of the 1973 Code reads as under: 656[436A. Maximum period for which an undertrial prisoner can be detained. Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties: Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liberty would be violative of the fundamental right visualised by Article 21, which has to be telescoped with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. 416. The Union of India also recognized the right to speedy trial and access to justice as fundamental right in their written submissions and, thus, submitted that in a limited situation right of bail can be granted in case of violation of Article 21 of the Constitution. Further, it is to be noted that the Section 436A of the 1973 Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence. 419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 3 of the said decision, has held as follows:- 3. In the facts of this case, the appellant will complete 3 years of incarceration on 26th May, 2024. Thus, he will complete half of the prescribed sentence. In this case, obviously the trial has not started, as the charge has not been framed. This Court has held that Section 436A of the Code of Criminal Procedure, 1973 (for short CRPC ) will apply even to a case under the PMLA. But the Court can still deny the relief owing to the ground such as where the trial was delayed at the instance of the accused. As stated earlier, here there is no occasion for the appellant to cause the delay in trial, as even charge has not been framed. Moreover, there is no other circumstance brought on record which will compel us to deny the benefit of Section 436A of the CRPC to the appellant. (Emphasis added) 19. Speedy trial is one of the facets of right to life and liberty guaranteed under Article 21 of the Constitution of India. Speedy trial is an essential ingredient of reasonable, fair and just procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the Accu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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