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2022 (3) TMI 275 - HC - Money LaunderingSeeking grant of regular bail - criminal conspiracy - forgery - diversion/misappropriation of the public money - grant of various credit facilities to borrowers, in violation of banking norms and against receipt of illegal gratification - Sections 44/45 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Article 21 of the Constitution of India guarantees a right to personal liberty to every person, and thus, there is no gainsaying that bail is the rule and jail an exception. Time and again, it has been opined by Courts across the country that bail is the rule and jail an exception. Besides reiterating this view, the Supreme Court in Sanjay Chandra [2011 (11) TMI 537 - SUPREME COURT] has further laid down that both factors, i.e. severity of the punishment and gravity of the offence, have to be simultaneously weighed while determining whether or not to grant bail to an accused. In P. Chidambaram [2019 (12) TMI 186 - SUPREME COURT], it was held by the Supreme Court that even though gravity of the offence is an important factor for determining whether or not to grant bail, and economic offences of the nature involved in the case were prima facie grave, it is not a rule that bail shall inevitably be denied. No case may be seen as setting a precedent with respect to grant/rejection of bail, except on principle, and it will be for the Court concerned to determine the gravity of the charged offence in each case based on the facts and circumstances. Further, the gravity of the offence is a factor which is in addition to the triple test/tripod test. In matters of regular bail under Section 439 Cr.P.C., a Court must consider aspects, including but not limited to, the larger interest of the State or public, whether the accused is a flight risk, whether there is likelihood of his tampering with evidence, whether there is likelihood of his influencing witnesses, etc. Apart from these, another factor relevant to the question of bail would be the gravity of the alleged offence and/or nature of the allegations levelled, which may serve as an additional test and can be applied while keeping in view the severity of the punishment that the offence entails - It is equally well-settled that economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the country, bail shall not be denied to a person accused of an economic offence in a routine manner. Each case must be adjudged on the basis of the peculiar facts and circumstances, while striking a balance between the right to personal liberty of the accused and the interest of the society in general. Applicability of Section 45(1) of PMLA - HELD THAT:- In 2017, the constitutional validity of Section 45 PMLA came to be challenged before the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT], wherefore, by a judgment rendered in 2018, explicating the defects inherent in the provision and the challenges posed thereby, the Supreme Court held that the twin conditions imposed by Section 45(1) PMLA were manifestly arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India - Post the decision in Nikesh Tarachand Shah, an amendment was made to Section 45 PMLA vide the Finance Act, 2018 and brought into effect from 19.04.2018. Coming to the present case, it is noted that while rejecting the applicant’s bail application on 30.10.2021, the learned Special Judge held that the complaint having been filed and the documentary evidence having been collected, there was no possibility of the applicant tampering with the evidence. It was further held that the evidence having been collected and the witnesses having been examined, chances of the applicant influencing witnesses were remote - this Court concurs that the apprehensions of the applicant tampering with evidence and influencing witnesses are unfounded. Insofar as the apprehension of the applicant being a flight risk is concerned, it is noted that the respondent has already issued LOCs against the applicant, who is also willing to surrender his passport. In this backdrop, this Court is of the opinion that the applicant’s presence during the trial can be secured by taking adequate measures, including surrender of his passport, and imposing necessary conditions. This Court is not inclined to admit the present applicant on bail. The bail application is accordingly dismissed.
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