TMI Blog2023 (10) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. The exercise of the powers under one, cannot be restrained on the apprehension that it could lead to the exercise of powers under the other - this court would be loath to simply brushing aside the petitioner s contention that apart from filing the present petition, he has no other way of protecting himself from possible unlawful arrest at the hands of the ED and that he is remediless in law. This court is clear that if it is indeed true that the petitioner is remediless in relation to his grievance, a writ petition invoking the extraordinary plenary jurisdiction of this court under Article 226 of the Constitution would always lie. Availability of remedy under section 438 Cr.P.C. - HELD THAT:- A meaningful reading of the decision in Vijay Madanlal Choudhary [ 2022 (7) TMI 1316 - SUPREME COURT ], when it says that the underlying principles and rigours of section 45 of the PMLA, viz. the requirements of satisfying the additional twin conditions prescribed therein for obtaining bail, would apply equally to grant of bail under section 438 Cr.P.C., makes it clear that the remedy of applying for anticipatory bail under section 438 Cr.P.C. is available to the petitioner if he ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing No. ECIR/DLZO-I/04/2020 registered by the respondents/Directorate of Enforcement ( ED ) on 04.03.2020. By way of the accompanying application bearing Crl. M.A. No. 22727/2023 filed under section 482 Cr.P.C. the petitioner seeks Stay of the entire proceedings emanating from the ECIR bearing No. ECIR/DLZO-I/04/2020 and now being investigated by the ED; and a further direction that the ED be directed not to take any coercive steps against the petitioner curtailing his personal liberty. Brief Background 2. The immediate provocation for the petitioner to approach the court is summons dated 18.08.2023 issued to him by the Assistant Director, Directorate of Enforcement, Chandigarh under section 50(2) and (3) of the Prevention of Money Laundering Act, 2002 ( PMLA ), requiring the petitioner to appear before the ED on 21.08.2023. 3. The petitioner states in the petition that he ...has a strong apprehension that he will be illegally detained/arrested by the Respondents and he will be made a scapegoat in order to protect the interest of the main promoters/alleged main beneficiaries of the company . [cf. para 5 of the writ petition] 4. Notably, a copy of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Insolvency Bankruptcy Code, 2016; 5.7. On another note, it is noted that the petitioner is also one of the accused in criminal complaint case bearing Ct. Case No. 990/2022 filed by the Serious Fraud Investigation Office ( SFIO ) under sections 420/120B of the IPC, sections 211/628/227/233 of the Companies Act, 1956 and sections 129/447/448 of the Companies Act, 2013, in which case he was admitted to bail vide judgment dated 03.05.2023 in Bail Appl. No. 251/2023 titled Ashish Mittal vs. Serious Fraud Investigation Office 2023 SCC OnLine Del 2484 after suffering custody for about 07 months. 6. Though notice had not yet been issued on the present petition, the respondents chose to file reply-affidavit dated 31.08.2023, by way of a pre-emptive response. 7. This court has heard Mr. Mohit Mathur, learned senior counsel appearing for the petitioner; as also Mr. Anupam S. Sharma, learned Special Counsel appearing for the respondents/ED. Written submissions have also been filed on behalf of the parties. 8. By way of a preliminary objection, Mr. Sharma has opposed the very maintainability of the present petition, submitting that the trigger for filing the present pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hulam Ghouse (2004) 3 SCC 440, which was a matter under the Foreign Exchange Regulation Act, 1973 and the Foreign Exchange Management Act 1999, the Supreme Court had this to say : 3. According to the appellants, the writ petition is thoroughly misconceived as it challenges a show-cause notice and in any event the final relief as sought for by Respondent 1-writ petitioner in relation to the show-cause notice should not have been granted by an interim order of the nature passed by withholding any further action in this regard. It was pointed out that Respondent 1 is responsible for financial irregularities involving nearly Rs 270 crores and documents have been forged, accounts have been manipulated; and in any event Respondent 1 was free to canvass all the points that were taken in the writ petition before the authority issuing the notice. Instead of doing that, he rushed to the High Court and unfortunately the High Court not only entertained the writ application but also granted interim relief which was in effect allowing the writ petition even before it was heard on merits. The final relief sought for itself, in substance, was granted by the interim order. The High Court sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n withdrawn, with the Supreme Court observing as follows : 3. ... we are convinced that the petitioners can be permitted to withdraw these writ petitions with the right to work out their remedy as and when any appropriate situation arises for working out such remedy 14. In the context of summons issued by the ED under section 50 of the PMLA, a Co-ordinate Bench of this court in Virbhadra Singh vs. Enforcement Directorate Ors. 2017 SCC OnLine Del 8930, has observed as follows : 143. The powers conferred on the enforcement officers for purposes of complete and effective investigation include the power to summon and examine any person . The law declares that every such person who is summoned is bound to state the truth. At the time of such investigative process, the person summoned is not an accused. Mere registration of ECIR does not make a person an accused. He may eventually turn out to be an accused upon being arrested or upon being prosecuted. No person is entitled in law to evade the command of the summons issued under Section 50 PMLA on the ground that there is a possibility that he may be prosecuted in the future . The law declared in Nandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter; but he has never been arrested pursuant to such summons. 22. It is also noteworthy that the impugned summons have been issued under section 50 of the PMLA, which provision therefore requires a closer look. It reads as under : 50. Powers of authorities regarding summons, production of documents and to give evidence, etc. ( 1) The Director shall, for the purposes of Section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely: (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a reporting entity, and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) ..... (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Special Court or Judicial Magistrate or a Metropolitan Magistrate , as the case may be, having jurisdiction: Provided that ..... (emphasis supplied) 27. The power under section 50 of the PMLA to issue summons to a person and to require the production of documents and record statements, which is akin to the powers of a civil court, is different and distinct from the power under section 19 to arrest a person. These are two separate and distinct provisions. The exercise of the powers under one, cannot be restrained on the apprehension that it could lead to the exercise of powers under the other. If that is permitted, any and every person summonsed under section 50 of the PMLA, to produce documents or give a statement on oath, could resist such summons expressing mere apprehension that he may face arrest at the hands of the ED, in exercise of the powers under section 19 of the PMLA. Such a position would be antitheti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ords of section 438 Cr.P.C. : When any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence (emphasis supplied) also show that the remedy embedded in that section is not restricted only to a person who is named as an accused in relation to a non-bailable offence. 34. The anxiety expressed on behalf of the petitioner in this regard however, is that in State of Gujarat vs. Choodamani Parmeshwaran Iyer 2023 SCC OnLine SC 1043 , the Supreme Court has held that a person summonsed under section 69 (sic, section 70) of the Central Goods Service Tax Act, 2017 ( CGST Act ) for recording his statement cannot invoke section 438 Cr.P.C. since no FIR gets registered before the power of arrest is invoked under section 69(1) of the CGST Act; and that therefore, such person can seek protection against arrest only by invoking the jurisdiction of the High Court under Article 226 of the Constitution of India; arguing therefore, that since no FIR is registered even under the PMLA, the petitioner would face the same impediment as in Choodamani (supra) and can only seek relief in writ proceedings. However, it may be noted that firstly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively and open to correction by the higher courts. The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse. 18. According to the sixth proposition framed by the High Court, the discretion under Section 438 cannot be exercised in regard to offences punishable with death or imprisonment for life unless, the court at the stage of granting anticipatory bail, is satisfied that such a charge appears to be false or groundless. Now, Section 438 confers on the High Court and the Court of Session the power to grant anticipatory bail if the applicant has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence . We see no warrant for reading into this provision the conditions subject to which bail can be granted under Section 437(1) of the Code. That section, while conferring the power to grant bail in cases of non-bailable offences, provides by way of an exception that a person accused or suspected of the commission of a non-bailable offence shall not be so released if there appear to be reasonable grounds for believing that he has been guilty of an offence punishable with death o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail in the same wide terms The expression if it thinks fit , which occurs in Section 438(1) in relation to the power of the High Court or the Court of Session, is conspicuously absent in Section 437(1). We see no valid reason for rewriting Section 438 with a view, not to expanding the scope and ambit of the discretion conferred on the High Court and the Court of Session but, for the purpose of limiting it. Accordingly, we are unable to endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life. Circumstances may broadly justify the grant of bail in such cases too, though of course, the court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. * * * * * 21. The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail. This, virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. ..... * * * * * 37. Third ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clarifies that the following need to be kept in mind by courts, dealing with applications under Section 438 CrPC: 92.1. Consistent with the judgment in Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], when a person complains of apprehension of arrest and approaches for order, the application should be based on concrete facts (and not vague or general allegations) relatable to one or other specific offence. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed. It is not essential that an application should be moved only after an FIR is filed; it can be moved earlier, so long as the facts are clear and there is reasonable basis for apprehending arrest. (emphasis supplied) 35. It is argued however, that what Gurbaksh Singh Sibbia (supra) and Sushila Ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1-B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aggarwal (supra), which expressly lay-down that the filing of an FIR, viz. formal accusation, is not a condition precedent for filing an application under section 438 Cr.P.C. 39. For completeness, it may also be noticed that section 65 of the PMLA makes the provisions of the Cr.P.C. applicable inter-alia to an arrest made under PMLA insofar as they are not inconsistent with the provisions of the PMLA. To be sure, though section 71 of the PMLA contains a non-obstante clause, there is nothing in the PMLA which restricts the court from granting relief under section 438 Cr.P.C. in an appropriate case. The only rider being that the twin conditions in section 45 of the PMLA will also have to be satisfied [Vijay Madanlal Choudhary (supra) at paras 411-412, 467(xiii)(d)] . In the opinion of this court therefore, there is no requirement in law for a prosecution complaint to have been filed for a person to maintain an application under section 438 Cr.P.C. Save for the stringent twin-conditions contained in section 45 PMLA, there is no provision in the PMLA which modifies the provisions of section 438 Cr.P.C. 40. In fact it is the respondent s stand that the petition is not m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed would, or would not, grant relief to the petitioner. Consequently, in view of the settled legal position, as reiterated by the Supreme Court in Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Ors. 2021 SCC OnLine SC 315 at paras 67-71, 80(xvi), the question of granting any interim relief as prayed for by the petitioner does not arise. 45. This court would hasten to clarify that it is not the purport of the present decision that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, is per-se barred from entertaining a petition by a person who is not a named accused in a scheduled offence, or in a prosecution compliant arising from an ECIR. It can never be so, since that would derogate from the well settled position of law as enunciated in the celebrated decision of the Supreme Court in L. Chandra Kumar vs. Union of India (1997) 3 SCC 261 at paras 75, 78-79, 81, 90 99; cf. Surya Dev Rai vs. Ram Chander Rai, (2003) 6 SCC 675 at para 29. To be sure, any limits on the plenary powers of Constitutional Courts are only self-imposed, and there can be no strait-jacket principles that can be said to have cribbed, cabined ..... X X X X Extracts X X X X X X X X Extracts X X X X
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