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TMI Blog2025 (1) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... strong roots in the State. The apprehension of the prosecution that the petitioners may flee from justice, can be adequately safeguarded by imposing stringent conditions. The petitioners have volunteered to abide by any condition that may be imposed by this Court and they will cooperate with the investigation. On considering the prosecution allegations and the explanations put forward by the petitioners, which have been narrated above, this Court is satisfied that there are reasonable grounds to hold that the petitioners have not committed the above offences. As the petitioners have no criminal antecedents, going by the law laid down by the Honourable Supreme Court in Dheeraj Kumar Shukla v. State of Uttar Pradesh [ 2023 (1) TMI 1374 - SC ORDER ], this Court has no hesitation to hold that the petitioners are not likely to commit an offence if they are enlarged on bail. This Court is convinced that the petitioners have satisfactorily diluted the twin conditions under Section 45 of the Act. Hence, the petitioners are entitled to be enlarged on bail. Conclusion - The prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Bank (the sixteenth accused); Kiran. P.P., a member of the Society (the ninth accused); Bijoy. A.K, a Commission Agent (the first accused) and Reji Anil, the Accountant of the Supermarket for committing the offences under Sections 406, 420, 409 and 465 read with Sec.34 of the Indian Penal Code ( IPC , for short). Subsequently, the crime was transferred to the Crime Branch, by order No. D3-108924/2021/PHQ dated 21.7.2021 and was re-registered as Crime No.165/2021. The DYSP-1, Crime Branch, Thrissur, by letter bearing No.289/DY.SP-I/CB/TSR/21 dated 22.9.2021, informed the Deputy Director of Enforcement Directorate, Kochi, regarding the details of the accused persons and the status of the crime. As Section 420 of the IPC is a scheduled offence under the Act, enquiries were initiated against the accused persons. After recording the facts of the scheduled offence, ECIR No. KCZO/45/2021, dated 2.8.2021, was registered. By committing the above criminal activity, the accused have obtained and possessed the proceeds of crime, layered and projected the proceeds of the crime as untainted money as defined under Sections 2 (1) (u) and 2 (1) (v) of the Act. The proceeds of the crime gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en provisionally attached. 5. The main contentions of the 15th accused in the bail application are that he is the Counsellor of the Vadakkanchery Municipality. He has not received any loan from the bank. There is no material to implicate him as an accused in the case. It was a calculated move by his political opponents to get him implicated in the present crime. He had appeared before the Investigating Agency on seven occasions and produced all the relevant materials to prove his innocence. On 12.9.2023, he was manhandled by the Investigating Agency. He was arrested on 26.9.2023. The only allegation in the remand application that was filed was that one Kiran P.P (9th accused) had deposited Rs. 20,00,500/- in his name, which was transferred by the 14th accused. The Enforcement Directorate Officials had got his custody on two occasions. The investigation in the case, so far as he is concerned, is complete. The complaint was filed on 14.07.2021. However, the investigation in Crime No. 651/2021 for the predicate offence is not completed. He is not an accused in the said crime, and the charge sheet has not been filed. Even though the 15th accused had filed similar applications for bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rounds to believe that the 15th accused has committed the above offences. The 15th accused has not diluted the twin conditions under Section 45 of the Act. The 15th accused is an influential person. He has misappropriated Crores of rupees. Furthermore, the investigation is to be conducted to ascertain the trail of the proceeds of the crime, the beneficiaries of the proceeds of the crime and the role of each accused person. The investigation has revealed that the 15th accused has committed the above offences. In view of the settled position of the law under the Act, the 15th accused is not entitled to be released on bail. Hence, the bail application may be dismissed. 8. Heard; Sri. Arun Bose and Sri. R. Sudhish, the learned counsel appearing for the petitioners and Sri. C.L.S undaresh, the learned Additional Solicitor General of India, assisted by Sri. Jayashankar V. Nair at length. 9. The learned counsel appearing for the 15th accused contended that the Enforcement Directorate Officials have been conducting the investigation pertaining to the transactions between 2014 and 2016. The predicate offence originated from Crime 650/2021 registered by the Irinjalakuda Police Station for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said petitioner had availed loans in the name of fictitious persons is false. All the so-called fictitious people are very much alive. It is only because they gave incorrect addresses in their loan application forms that they could not be traced out. The petitioner's signature has been forged in the loan applications. The loans were sanctioned in favour of the loanees as per the bye-laws of the banks and approved by the Administrative Board of the Society. The allegation that there was an undervaluation of the property is incorrect. The petitioner is suffering from hypertension and has been advised regular medical treatment. The predicate crime is still under investigation. There is no possibility of the trial in the case commencing in the near future. The learned counsel relied on the decisions of the Honourable Supreme Court in Vijaya Nair v. Directorate of Enforcement [SLP (Crl. No.22137/2024] and Senthil Balaji s case (supra). He prayed that the application may be allowed. 11. The learned Additional Solicitor General of India opposed the applications. He drew the attention of this Court to the allegations in the complaint and the statements of the witnesses. He reiterat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure (Cr. P.C). There is a specific embargo to grant bail to a person accused of an offence under the Act, which is: (i) that the Public Prosecutor must be given an opportunity to oppose the application for bail, and (ii) the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while he is on bail. 14. In addition to the above stipulation, Section 65 of the Act mandates that the provisions of the Cr. P.C shall apply in so far as they are not inconsistent with the provisions of the Act. Likewise, Section 71 of the Act states that the provisions of the Act shall have an overriding effect, notwithstanding anything inconsistent contained in any other law for the time being in force. Therefore, the conditions enumerated in Section 45 of the Act have to be complied with even in respect of an application for bail made under Section 439 of Cr. P.C. Consequently, the power to grant bail to a person accused of having committed an offence under the Act is not only subject to the limitations imposed under Section 439 of Cr. P.C., but also subject to the rigo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby . 401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant of bail need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his and his wife s names. 20. The defence of the 16th accused is that the so-called fictitious persons, in whose names he had allegedly availed loans, are very much alive. They are all members of the Bank. He only worked for the Society and had nothing to do with the Bank. His signature was forged in the loan applications. The loans were sanctioned in favour of the loanees as per the bye-laws of the Bank and approved by the Administrative Board of the Society. 21. In addition to the petitioners' defence regarding their alleged acts of cheating, it is undisputed that they have been in judicial custody for the last 14 months. 22. A three-judge Bench of the Honourable Supreme Court in Union of India v. K.A. Najeeb [(2021) 3 SCC 713] had considered the question of long incarceration and its effect on Section 43-D (5) of the Unlawful Activities (Prevention) Act, 1967 AP Act, and held as follows: 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thus: 10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court, (1978) 1 SCC 240 . We quote: What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]: I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial. 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider exercising their powers to grant bail. The reason is that Section 45 (1) (ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb2, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of India of speedy trial. (emphasis supplied) 25. In the case on hand, the petitioners have been in judicial custody for the last 14 months; the investigation of the crime, so far as the petitioners are concerned, is complete, and the complaint has been filed. But the investigation into the predicate offence is not complete and the charge sheet has not been filed. Therefore, there is not even the remotest possibility of the trial in the crime commencing in the near future. So, keeping the petitioners in indefinite incarceration till the culmination of the trial will infringe on their right to life guaranteed under Article 21 of the Constitution of India. The petitioners have strong roots in the State. The apprehension of the prosecution that the petitioners may flee from justice, can be adequately safeguarded by imposing stringent conditions. The petitioners have volunteered to abide by any condition that may be imposed by this Court and they will cooperate with the investigation. 26. On considering the prosecution allegations and the explanations put forward by the petitioners, which have been narrated above, this Court is satisfied that there are reasonable grounds to hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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