TMI Blog2018 (7) TMI 2155X X X X Extracts X X X X X X X X Extracts X X X X ..... leased on bail. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. A presumably innocent person must have his freedom to enable him to establish his innocence. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail. The petitioner is facing proceedings at the instance of Enforcement Directorate in view of case registered by Central Bureau of Investigation (CBI). In the CBI case also, the petitioner remained in custody from 4.7.2011 till 24.2.2012. The petitioner has been on bail in the CBI case. The CBI case formulates the basis for the Enforcement Directorate to proceed against the petitioner - We have also taken notice of the past conduct of the petitioner. No material has been placed before us to indicate that the petitioner has tried to influence the investigation by way of tampering with the evidence, influencing the witnesses or manipulating the records or overawing any authority or person. We cannot lose sight of the punishment provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se was renumbered as mentioned hereinabove. Investigation was undertaken. The Enforcement Directorate did not take the petitioner in custody, rather it is the admitted case that the petitioner cooperated in investigation. The co-accused of the petitioner entered a plea bargain on 16.11.2012 as is evident from Annexure - 5 appended with the bail application. 6. Gist of the allegations against the petitioner is that the petitioner while serving as a Bank Manager granted loan to various persons out of which the petitioner took commission and laundered the money/proceeds of crime in the sum of ₹ 38,95,938/-, hence the proceedings under PMLA. Having concluded investigation, complaint was filed by the Enforcement Directorate on 04.02.2015 placed on record as Annexure - 4 with the bail application. 7. The petitioner surrendered to the process of the Court on 15.01.2016 and applied for bail. The Enforcement Directorate opposed the bail. Be that as it may, the petitioner was taken in custody on 15.01.2016. The petitioner is in custody since then. Application of the petitioner for bail was rejected vide order dated 09.03.2016 by the Trial Court. The above noted seq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision. 45. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, [ . ] may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of Law and Justice (Legislative Department) (relevant portion) so far as it amends Section 45 of the PMLA reads as under : 208. In the Prevention of Money-laundering Act, 2002,- x x x x (e) in section 45, in sub-section (1), - (i) for the words punishable for a term of imprisonment of more than three years under Part A of the Schedule , the words under this Act shall be substituted; (ii) in the proviso, after the words sick and infirm, , the words or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees shall be inserted; x x x x (emphasised by us) 14. Provisions of Section 45 of PMLA, after incorporating the legislative amendment (supra), and after judgment rendered by the Hon ble Supreme Court of India in Nikesh Tarachand Shah s case would read in the following terms : Section 45. Offences to be cognizable and nonbailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence[ ] under this Act shall be released on bail or on his own bond unless - Provided that a person who, is under the age of sixteen years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me being in force on granting of bail. Inversely, the provisions of Section 45 of the PMLA provide that the persons not falling in the above noted categories would not be entitled to be released on bail. 18. Before we proceed to consider the plea for bail made by the petitioner, in context of the accusations against him and the facts and circumstances surrounding the accusations, we would like to refer to a different portion from the judgment rendered by Hon ble Supreme Court of India in Nikesh Tarachand Shah s case(supra) wherein the offence of money laundering has been explained and right to bail of a citizen during investigation or trial has been considered. In this regard, we extract hereunder paras 11 to 19 from the said judgment : 11. Having heard learned counsel for both sides, it is important to first understand what constitutes the offence of money laundering. Under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as whosoever , directly or indirectly and attempts to indulge would show that all persons who are even remotely involved in this offence are sought to be roped in. An important ingredient of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tabled before Parliament, Section 44, which corresponds to Section 45 of the present Act, provided that several offences punishable under this Act are to be cognizable, and the twin conditions for release on bail would apply only insofar as the offences under the Act itself are concerned. When the Act was finally enacted in 2002 and notified in 2005, this scheme changed radically. Now, both the offence of money laundering and the predicate offence were to be tried by the Special Court, and bail is granted only if the twin conditions under Section 45(1) are met, where the term of imprisonment is more than three years for the predicate offence. It is important to note that Clause 44 of the Bill referred only to offences under Section 3 and 4 of the Bill, whereas Section 45 of the Act does not refer to offences under Sections 3 and 4 of the Act at all. Reference is made only to offences under Part A of the Schedule, which are offences outside the 2002 Act. This fundamental difference between the Bill and the Act has a great bearing on the constitutional validity of Section 45(1) with which we are directly and immediately concerned. 15. The provision for bail goes back to Magna Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sir John Vaughan was able to state that: the writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it. Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, immediately commanded that the laws should have their due course. (See Jenke s case, How. St. Tr. 1189 at 1207, 1208 (1676)). It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act of 1679. This Act recited that many of the King s subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King s Bench Judges subject to penalties for non-compliance. 17. The next great milestone in English history is the Bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [AIR 1931 All 356, 358 : 1931 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Code of Criminal Procedure was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attendance of the accused at the trial. The proper test to be applied in the solution to the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. This Court is conferred with wide powers to grant bail. There is no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 439 CrPC (Section 498 of old Code) . It has been held that it would be unwise to make an attempt to lay down any particular rule which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. It has been observed by the Hon ble Supreme Court of India that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. A presumably innocent person must have his freedom to enable him to establish his innocence. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bureau of Investigation (CBI). In the CBI case also, the petitioner remained in custody from 4.7.2011 till 24.2.2012. The petitioner has been on bail in the CBI case. The CBI case formulates the basis for the Enforcement Directorate to proceed against the petitioner. We have also taken notice of the past conduct of the petitioner. No material has been placed before us to indicate that the petitioner has tried to influence the investigation by way of tampering with the evidence, influencing the witnesses or manipulating the records or overawing any authority or person. 23. We have also taken into account the provisions contained in Section 44(1)(c) of the PMLA which provides that the CBI case and the case initiated by the Enforcement Directorate/ECIR case are to be tried together and decided together. In the CBI case, 130 witnesses have been cited, of which only six have been examined till date, though the charge-sheet in the CBI case was filed on 13.3.2012, as informed by the learned counsel (s). In the case being prosecuted by the Enforcement Directorate, the first witness is being examined. There are as many as 24 witnesses as per the prosecuting agency/Enforcement D ..... X X X X Extracts X X X X X X X X Extracts X X X X
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