TMI Blog2014 (11) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... ey would form a part of the present case only. As such, it would not be easy for him to abscond. In any case, appropriate conditions can be imposed upon the applicant to ensure that he would not abscond. Detaining the applicant further in custody without granting bail, in the circumstances, would be unfair, unreasonable and would violate the provisions of Article 21 of the Constitution of India. Thus we are inclined to release the applicant on bail, subject to certain conditions. - Criminal Bail Application No.1779 of 2013 - - - Dated:- 10-11-2014 - ABHAY M. THIPSAY, J Appellant Rep by: Mr. Mahesh Jethmalani, Sr. Adv. with Mr. Dinesh Tiwari and Swapnil Ambure Respondent Rep by: Mr. S.K. Shinde, Public Prosecutor with Ms. Rebecca Gonsalves Ms. S.S. Kaushik, APP for the State. JUDGEMENT 1. The applicant is one of the accused in PMLA Special Case No.1 of 2013 pending before the Special Court constituted under the Prevention of Money Laundering Act, 2002 (for short, 'PMLA Act'), at Mumbai. The allegation against him is that he has committed the offence of Money Laundering as defined in section 3 of the PMLA Act, and punishable under section 4 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the same were not deposited in banks, and were utilised by the applicant for his personal use and expenses. That, the applicant purchased immovable and movable properties in his name out of the amounts invested by the investors. That, the applicant has thus, committed various offences of criminal breach of trust, cheating, criminal conspiracy etc, and has laundered the money earned by committing the offences in question. 5. The complaint gives details of various transactions which allegedly show the activities of the applicant amounting to money laundering as mentioned in section 3 of the PMLA Act, and claims that the applicant has committed an offence punishable under section 4 of the PMLA Act. An attempt has been made by the applicant to refute such claims by offering explanations with respect to such transactions, and a further attempt has been made by the Directorate of Enforcement - investigating and prosecuting agency - to again refute the explanations that are being given by the applicant. It would be wholly unnecessary to discuss the rival contentions in depth, so far as the present application is concerned. It cannot be disputed at this stage that the applicant is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligations towards the investors. It is submitted that inspite of this, efforts are still being made to repay the amounts received from investors and 16 cases filed against the applicant have already been compounded on payment of the amounts due and payable to the investors concerned in those cases. It is also submitted that proceedings for winding up of the applicant's Companies are going on, and Official Liquidator has been appointed. That, adjudication of the claims is going on. It is also submitted that all the properties of the applicant and his Companies have been attached in the course of investigation of various cases that are pending against the applicant, and also in the present case under the PMLA Act. It is submitted, lastly, that since the applicant is in custody for a period of more than three years, and since there is no likelihood of the trial of the case proceeding, the applicant be released on bail on such terms and conditions as the Court may think fit to impose. 8. The emphasis of the learned Public Prosecutor and the learned counsel for the Respondent no.1 has been only on the magnitude of the offences allegedly committed by the applicant. As aforesaid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts were heard, I had called upon the learned counsel for the parties to be precise, and give details regarding some relevant aspects of the matter. Accordingly, such details have been given. The following facts are not in dispute. (a) The applicant is in custody in this case from 14th December 2012. (b) Pursuant to the provisional attachment orders passed, property worth more than ₹ 133 crores belonging to the applicant and his Companies has been attached in the course of investigation of this case, and adjudication proceedings are going on. (c) Search for other properties, if any, of the applicant and/or his Companies which are liable to be attached is going on as the investigation continues, and leave has been taken by the Investigating Agency to file additional/supplementary complaints. (d) Two supplementary complaints i.e. Complaint no.3/13 and complaint no.6/13 against the applicant have already been filed on 15th January 2014. (e) 53 criminal cases apart - from the cases under the PMLA Act - were registered against the applicant and his Companies on similar allegations i.e. of the investors having been deceived and cheated. These cases are pendin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment of more than three years under Part-A of the schedule shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application for such release, and unless (where the Public Prosecutor opposes the application) the Court is satisfied that there are reasonable grounds for believing that such person is not guilty of such offence, and that he is likely to commit any offence while on bail'. Thus, the powers of the Court in the matter of grant of bail are indeed restricted in case of the accusation being of an offence listed in Part-A of the schedule. 15. The contention advanced by the learned counsel for the applicant is that the scheduled offence/s in this case are of cheating and that the offence of cheating did not find a place in Part A of the Schedule at the material time. It is submitted that the offence of cheating was brought in Part A only after the complaint had been filed. According to him, therefore, in the present case, the bar provided under section 45 of the PMLA Act is not attracted. 16. It is not in dispute that the complaint has been filed on 11 February 2013. It is also not in dispute that the scheduled offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or which have the effect of increasing penalties for existing offences will only be prospective - not only by reason of the restriction imposed by Article 20 of the Constitution - but even otherwise, on the principle of fairness and justice. In fact, it is the principle that it would be shocking to one's sense of justice that an act legal at the time of doing it, should be made unlawful by some subsequent enactment, that has been recognized in the said constitutional provision. In this case, the change brought about by amending the schedule cannot be said to be merely procedural, as it would affect the rights of a person to be released on bail substantially and drastically. Anyway, an elaborate discussion on this, is not necessary in the present case, as in this case, the complaint, after investigation had already been filed, before the offence punishable under section 420 of the IPC was included in Part-A of the Schedule. In fact, as pointed out by the learned counsel for the applicant, the complaint itself proceeds on the basis that the offences allegedly committed by the applicant, were covered under PartB of the Schedule(para 8). As such, it cannot be said that the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, and could not be kept before the Magistrate has been taken. In fact, from the arguments advanced by Mr.Solkar on behalf of the investors while opposing the said Bail Application, it appears that the investors are not really happy with the idea of the said case being tried by the Special Court as relating to the Scheduled offences that generated the proceeds of crime that are allegedly laundered. The reason is that according to Mr.Solkar, the learned counsel for the intervenors/ investors in that case, the attachment of the properties of the applicant and his Companies by the Enforcement Directorate in connection with the present case does not help the investors in any manner, inasmuch as such properties would vest in the Government. He submitted that this will not enable the investors to get their monies back. 22. I have considered the grievance of the investors. Basically, what the investors want is only that their money should be repaid, and they expect this to be achieved by keeping the applicant in detention. I have also considered their contention that the attachment of properties under the provisions of the PMLA Act would not help them. Even if this is accepted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C 830 , the Supreme Court of India reiterated the principles regarding grant of bail after having taken a review of various decisions rendered by the Supreme Court in bail matters, including that in Babu Singh Vs. State of Uttar Pradesh (1978) 1 SCC 579, Moti Ram Vs. State of Madhya Pradesh (1978) 4 SCC 47 and Siddharam Satligappa Mhetre Vs. State of Maharashtra (2011) 1 SCC 694 . The observations made by Their Lordships leave no manner of doubt that there has been no change in the legal principles or legal position with respect to the grant of bail. There is no change in the basic principle that power to refuse bail is not to be exercised as and by way of inflicting punishment. The following observations made by Their Lordships in the aforesaid judgment are worth quoting. ................... one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson . (parag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whichever is earlier. (ii) The applicant shall deposit his passport with the Directorate of Enforcement and consent for its retention by them, till the disposal of the case against him. If the applicant does not hold a passport, or if the same is already in custody of the Directorate of Enforcement, or some other Investigating Agency, the applicant shall file an affidavit to that effect in the trial court, within a period of 10 days from today. (iii) The applicant shall not leave the limits of Brihan Mumbai and District Thane, except with the express permission of the Special Court under the PMLA Act. This condition, however, shall not operate when the appellant would be required to leave the limits of Brihan Mumbai and District Thane for the purpose of attending the Court/Courts in which cases against him are pending, or where his presence is required by any Investigating Agencies in connection with the investigation. He shall, however, in such cases, give a written intimation about the same to the Enforcement Directorate. 29. At this stage, Ms.Rebecca Gonsalves prays for stay on the operation of this order saying that the Directorate of Enforcement intends to challe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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