TMI Blog2020 (12) TMI 1129X X X X Extracts X X X X X X X X Extracts X X X X ..... was incorporated before other provisions for granting of bail under Section 437 and 439 of Cr.P.C. and judicial discretion is a matter regard and required to be exercised with due care and caution. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and circumstances of each case. Certain parameters have to be kept in mind while considering or dealing with the application for anticipatory bail. On perusal of the factual matrix on hand, the allegation leveled against the petitioner has to be considered and appreciated during the course of trial. The only consideration which has to be looked into for the purpose of granting or refusing bail is whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie case, there is no question of considering other circumstances. Even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment, but whether the presence of the accused would be readily available for trial or that he is likely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cumstances of the case, the interest of justice warrants grant of anticipatory bail to the petitioner in the investigation being conducted by the respondent under the Prevention of Money Laundering Act. Further, the petitioner is duty bound to co-operate with the investigation by the respondent at all stages. The petition is allowed - the petitioner is granted anticipatory bail in connection with the respondent investigation. - A.B. No. 42 of 2020 - - - Dated:- 16-12-2020 - HON'BLE MR. JUSTICE M.V. MURALIDARAN For the Petitioner : Mr. Salman Khurshid, Sr. Advocate Mr. N. Ibotombi, Sr. Advocate, Mr. A. Rommel, Advocate. For the Respondents : Mr. S. Suresh, Asst.SG Mr. S.V. Raju, Addl. SG Mr. Zoheb Hossain, Special Counsel ED Mr. Guntur Pramod Kumar, Adv Mr. A. Venkatesh, Adv Mr. Sairica Raju, Adv Mr. Shaurya Ranjan Rai, Adv Mr. Agni Sen, Adv for Directorate of Enforcement JUDGMENT 1. This petition has been filed by the petitioner under Section 438 of Code of Criminal Procedure, 1973 seeking to grant pre- arrest bail in connection with a case to be registered against him under the provisions of the Prevention of Money Laundering Act, 2002 (in short, PM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as if the petitioner, who is Ex-Chief Minister of Manipur, is arrested, then the preset Government would make believe to the people of Manipur that the previous Government was corrupt and the present Government is making all efforts to correct the misdeed done by the previous Government. He would submit that in the online news report, there is no material against the petitioner to array him as an accused and the allegations in the report are on mere assumption without any cogent material. 4. The learned senior counsel further submitted that the petitioner had not committed any offences as alleged in the report and there is no material to support the report so as to make him as an accused. The report had made a false and fabricated case against the petitioner to wreak political vengeance. 5. The learned senior counsel then submitted that the present allegation/complaint has been made with vested interest by the present Government to crush the political opposition by making a false and fabricated case against the petitioner. Thus, there is an apprehension that as per the report, a criminal case is likely to be registered against the petitioner and that the petitioner might be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and that the petitioner has not approached the Special Court seeking anticipatory bail and filing petition for anticipatory bail before the High Court without approaching the Special Court is liable to be rejected. 10. The further contention of the learned counsel for the respondent is that the economic offences need to be viewed seriously and considered as a class apart and the power to grant anticipatory bail under Section 438 Cr.P.C. being an extraordinary remedy has to be exercised sparingly more so in cases of economic offences. 11. Mr. S. Suresh, the learned A.S.G., then submitted that the twin conditions for grant of bail under Section 45 of the PML Act have been revived vide 2018 Amendment and that the contention of the petitioner that the twin conditions for the grant of bail specified under Section 45 of the PML Act are struck down is completely untenable. Stating that the present petition is wholly misplaced and premature, the learned counsel prayed for rejection of the petition. In support, the learned A.S.G., placed reliance upon the following judgments: (1) Sh. Gurbaksh Singh Sibbia and others v. State of Punjab, (1980) 2 SCC 565. (2) Vinod Kumar v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d BA.No.3024/2014 (Sri Kwmta Swra Brahma v. State of Assam), decided on 10.4.2015. 17. In Vinod Kumar (supra), the Hon'ble Supreme Court held as under: 54. In light of what has been held above, the Court records its conclusions on the questions formulated as under:-- A. Section 438 Cr.P.C. on its plain terms does not mandate or require a party to first approach the Sessions Court before applying to the High Court for grant of anticipatory bail. The provision as it stands does not require an individual first being relegated to the Court of Sessions before being granted the right of audience before this Court. B. Notwithstanding concurrent jurisdiction being conferred on the High Court and the Court of Session for grant of anticipatory bail under Section 438 Cr.P.C., strong, cogent, compelling and special circumstances must necessarily be found to exist in justification of the High Court being approached first without the avenue as available before the Court of Sessions being exhausted. Whether those factors are established or found to exist in the facts of a particular case must necessarily be left for the Court to consider in each individual matter. C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail petition and direct the party to approach the Court of Sessions first because Section 438 Cr.P.C. shall not be exercised as a matter of right by the party, though it can be invoked either before the Sessions Court or before the High Court. 21. It is purely the discretionary power of the Court to exercise power depending upon the facts and circumstances of each case. Therefore, the High Court can direct the party to go first before the Court of Sessions and then come to the High Court though there is no embargo under the statute itself, but the Court can do so on the basis of various factors. 22. It is worth to note here that whenever the concurrent jurisdiction is vested under the statute simultaneously in two Courts of which one is superior to the other, then it is appropriate that the party should apply to the subordinate Court first, because the higher Court would have the advantage of considering the opinion of the Sessions Court. Moreover, the party will get two opportunities to get the remedy either before the Sessions Court or before the High Court, but if once he approaches the High Court, he would run the risk that the other remedy is not available to him if he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for rushing to this Court directly for seeking the discretionary relief of anticipatory bail under the provisions of Section 438 of Cr.P.C. and thus, the instant anticipatory bail filed before the High Court is very well maintainable. 25. The background for the allegation of the money laundering alleged by the respondent against the petitioner is admittedly in relation to the CBI case earlier registered against the petitioner and others. Now coming to the CBI FIR bearing RC-DST-2019-A/0011 dated 20.11.2019 (FIR Case No.244(9)2017), Dr.Th.Munindro Singh, Joint Secretary (Planning), Government of Manipur lodged a complaint before the Officer-in-Charge, Imphal Police Station on 01.9.2017 to register a case against (1) Y.Ningthem Singh, former Project Director MDS; (2) D.S.Poonia, IAS, then Chairman MDS; (3) O.Ibobi Singh, the then Chairman of MDS; (v) P.C.Lawmkunga, IAS, the then Chairman of MDS and (5) O.Nabakishore Singh, IAS, the then Chairman of MDS along with one S.Ranjit Singh, Administrative Officer, MDS alleging cheating, criminal conspiracy and breach of trust, thereby causing loss to the public exchequer. The specific complaint against the petitioner as could be seen fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh, Y.Ningthem Singh, former project director Manipur Development Society, DS Poonia retired Indian Administrative Services official and also the former chairman of MDS, PC Lawmuknga, retired IAS and then chairman of MDS and O Nabakishore Singh, retired IAS and ex-chairman MDS. (emphasis supplied) 28. Highlighting the above said news item dated 12.11.2020 that appeared in the OnLine news captioned Trouble mounts for former Manipur CM Okram Ibobi Singh, ED all set to file PMLA case , the petitioner has filed the instant petition seeking anticipatory bail apprehending arrest in connection with the investigation under the Prevention of Money Laundering Act initiated by the respondent. 29. According to the respondent, there is no valid ground for apprehension of arrest at this stage and the same is premature. It is also the contention of the respondent that no prosecution complaint under the Prevention of Money Laundering Act has been filed by the respondent as on date and that the newspaper reports are merely hearsay and cannot be relied upon by the Courts and therefore, newspaper reports cannot be a basis for a genuine apprehension of arrest for a person seeking antici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the grounds for such arrest at the earliest and in terms of sub- section (3) of Section 19 of the Act, the arrested person is required to be produced to the jurisdictional Judicial Magistrate or Metropolitan Magistrate within 24 hours excluding the journey time from the place of arrest to the Magistrates Court. In order to ensure the safeguards, in exercise of power under Section 73 of the Act, the Central Government has framed The Prevention of Money- Laundering (The Forms and the Manner of Forwarding a Copy of Order of Arrest of a Person along with the Material to the Adjudicating Authority and its Period of Retention) Rules, 2005 . Rule 3 of the said Rules requires the arresting officer to forward a copy of the order of arrest and the material to the Adjudicating Authority in a sealed cover marked confidential and Rule 3 provides for the manner in maintaining the confidentiality of the contents. 34. There is no dispute that the procedure under PML Act for arrest ensures sufficient safeguards viz., (i) only the specified officers are authorised to arrest; (ii) based on reasons to believe that an offence punishable under the Act has been committed; (iii) the reasons for such b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecutor 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 special order made in this behalf by that Government. (2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 39. Subsequent to the Hon'ble Supreme Court's decision, in Nikesh Tarachand Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41. It can be easily deciphered, on comparative reading of Section 45(1) of the PML Act, pre-amendment and post- amendment, that Clause (ii) of sub- Section (1) remained as it stood before amendment. 42. In the aforesaid background, the issue which has arisen in the present matter is as to whether the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra) can be said to have lost its significance because of the aforesaid amendment in Section 45(1) of the PML Act. 43. It is eminent that clause (ii) of sub-Section (1) of Section 45 of the PML Act places two conditions for release of a person accused of an offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely; the Court is satisfied (i) that there are reasonable grounds for believing that the accused is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail. Whether substitution of the words 'under this Act' in place of the words 'punishable for a term of imprisonment of more than three years under Part A of the Schedule' in Section 45(1) of the Act, has the impact of meeting with the reasonings and logic in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eddy and Rohit Tandon (supra), the learned counsel for the respondent submitted that in economic offences, an accused is not entitled for anticipatory bail as gravity of economic offences affects the entire society, and, therefore, constitute a class apart and need to be visited with a different approach in the matter of grant of bail. 49. According to the learned counsel for the respondent, the Hon'ble Supreme Court in the case of Nikesh Tarachand Shah (supra) declared clause (ii) of Sub-section (1) of Section 45 of the Act ultra vires because of the first part of the provision which controlled the twin conditions, which has been subsequently amended. He has submitted that the prescription of twin- conditions for grant of bail in clause (ii) of Sub-section (1) of Section 45 of the Act has not been held to be ultra vires Articles 14 and 21 of the Constitution of India per se. According to the learned counsel, the amended provision of the Act has completely altered the situation. 50. The learned counsel for the respondent argued that with the substitution of the words 'such offences under the Act', now the conditions for bail apply with respect to an offence of mon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the 2002 Act. 54. The statutory history of Section 45 of the PML Act has been elaborately discussed in Nikesh Tarachand Shah (supra) by the Hon'ble Supreme Court in paragraphs 26 to 30. In fact, the Hon'ble Supreme Court has explained, with illustrations, the effect of the twin conditions imposed for grant of bail, if a person was accused of offence punishable for a term of imprisonment of more than three years under Part A of the Schedule. The Hon'ble Supreme Court observed in paragraph 31 as under:- 31. ..... The statutory scheme, as originally enacted, with Section 45 in its present avatar, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Amendment Act of 2012 when predicate offences of 3 years and less than 3 years contained in Part B were all lifted into Part A). In this illustration, again, Mr. X would be liable to be enlarged on bail under Section 439 of the Code of Criminal Procedure by the Special Court/High Court, with or without conditions, as Section 45 of the 2002 Act would have no application. 57. By way of fourth illustration, the Hon'ble Supreme Court considered a situation where a persons is prosecuted for an offence under the Act and an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule and then discussed the consequences thereof. The Hon'ble Supreme Court observed as under:- In this illustration, the Special Court/High Court would enlarge Mr. X on bail only if the conditions specified in Section 45(1) are satisfied and not otherwise. In the fourth illustration, Section 45 would apply in a joint trial of offences under the Act and under Part A of the Schedule because the only thing that is to be seen for the purpose of granting bail, under this Section, is the alleged occurrence of a Part A scheduled offence, which has imprisonment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature. 59. At this juncture, it is to be noted that the Hon'ble Supreme Court clearly held that indiscriminate application of the provision of Section 45 of the PML Act will certainly violate Article 21 of the Constitution of India. 60. In the aforesaid background, it is to be seen as to whether the amendment introduced in Section 45 of the Act, as noted above, by Act No. 13 of 2018, shall amount to re-framing the entire Section 45 and thereby reviving and resurrecting the requirement of twin-conditions under sub-Section (1) of Section 45 of the PML Act for grant of bail. In view of clear language used in paragraph 46 of the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra), this Court has no hesitation in reaching a definite conclusion that the amendment in sub-Section (1) of Section 45 of the PML Act introduced after the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra) does not have the effect of reviving the twin-conditions for grant of bail, which have been declared ultra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and circumstances of each case. Certain parameters have to be kept in mind while considering or dealing with the application for anticipatory bail. Those guidelines have been laid down by the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and others, (2011) 1 SCC 694. In paragraph 112, the Hon'ble Supreme Court held as under:- 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eja v. State of Gujarat, AIR 1984 SC 372, the Hon'ble Supreme Court observed as under:- It is now well-settled by a catena of decision of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only material considerations in such a situation are whether the accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the Court in the matter of bail is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. 67. In catena of decisions, the law relating to grant of anticipatory bail has been discussed and emphasized that the provisions of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India which relates to personal liberty and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India [(1978) 1 SCC 248],, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein. 68. Keeping in view the ratio laid down in the aforesaid decision and on perusal of the submissions made on behalf of the parties, the allegations in the form of news levelled against the petitioner are all the matters which have to be considered a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als with his personal liberty, which is a fundamental right guaranteed under the Constitution of India. 73. If an application for anticipatory bail is made to the High Court or the Court of Sessions, it must apply its own mind to the question and decide whether a case has been made out for granting such relief. Prima facie, in the instant case, the involvement of the petitioner in the alleged money laundering cannot be gone into as the investigation is at the initial stage. 74. In a catena of judgments, the Hon'ble Supreme Court explained the object of Section 438 Cr.P.C. to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. 75. It is the specific case of the petitioner that he being the Ex- Chief Minister of Manipur has been falsely implicated in order to gain political mileage and further if the petitioner is arrested, then the present Government would make believe to the people of Manipur that the previous Government was corrupt and the present Government is making all efforts to correct the misdeeds done by the previous Government. This Court does not want to enter into the political thick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the petitioner that there is a fear of petitioner that he will be arrested by the respondent based on the aforesaid news article. 81. It is true that antecedents of the accused must be seen while considering the bail application, but at the same time the allegations levelled by the respondent must also be seen. Court has to put the facts of the case of the respondent and the petitioner into a scale and weigh it to ascertain the truth. This Court is of the considered opinion that in order to ascertain the truth, a fair and unbiased investigation is necessary. In that light, by imposing some stringent conditions, if the petitioner is ordered to be released on anticipatory bail, it would serve both the ends. It would be worth to mention at this stage that as against the anticipatory bail granted in A.B.No.21 of 2017, the CBI has not preferred any appeal and the petitioner is having benefit of anticipatory bail in FIR No244(9)2017. 82. Since the news item appeared in the online news is pursuant to the CBI investigation, in which the petitioner has got anticipatory bail, now the apprehension stated by the petitioner is bona fide and as stated supra, the respondent themse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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