TMI Blog2021 (6) TMI 178X X X X Extracts X X X X X X X X Extracts X X X X ..... e any manipulation during pendency of investigation/ enquiry since year 2010. There is no reason to hold that the applicant may abscond in case, he is granted bail. The maximum punishment, which can be imposed is upto seven years. The applicant is in judicial custody since 09.11.2020 therefore, this appears to be no further requirement of his detention for custodial interrogation or for any other purpose of investigation. It would be proper to grant bail to the applicant at this stage - Bail application allowed. - MCRC No. 78 of 2021 - - - Dated:- 10-2-2021 - HON'BLE SHRI JUSTICE RAJENDRA CHANDRA SINGH SAMANT For Applicant : Mr. Abhimanyu Bhandari, Mr. Somesh Tiwari, Mr. Chiroy Madan, Mr. Goutam Khetrapal, Mr. Sourabh Dangi, Mr. Krishna Tandon, Mr. Swajeet Singh Ubeja, Mr. Chiranjiv Kaushil, Advocates For Respondent : Dr. Saurabh Kumar Pandey Mr. Anil S. Pandey, Advocates. For Objector : Mr. Devershi Thakur Mr. J.K. Gupta, Advocates. CAV ORDER 1. This is the second bail application filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to the applicant, who has been arrested in connection with Crime No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prosecution on the same set of facts and circumstances cannot be allowed to continue. In case of Videocon Industries Limited another Vs. State of Maharashtra others, reported in (2016) 12 SCC 315, the ratio laid down in the case of Radheshyam Kejriwal (Supra), has been reiterated by the Supreme Court. 6. It is submitted that the Supreme Court has granted bail in P. Chidambaram Vs. Directorate of Enforcement, reported in 2019 SCC Online SC 1549, wherein the applicant was not even exonerated by the Adjudicating Authority, therefore, the applicant herein, has a better case and he is entitled for grant of bail. 7. It is further submitted that Section 45 of the PML Act although provides for stringent condition to be followed in the matter of grant of bail. The Supreme Court has very clearly held in Nikesh Tarachand Shah Vs. Union of India another, reported in (2018) 11 SCC 1, that in pre-trial bail provision under Section 45 imposing twin stringent conditions under Section 45(1) for offences classified thereunder, held manifestly arbitrary, discriminatory and invalid. Hence, no denial of bail, can be made as per Section 45 of the PML Act. 8. The applicabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of the applicant. Hence, the crime alleged to have been committed by the applicant is of huge scale and on the basis of elaborate planning, involving the huge amount of money. 12. It is further submitted that the applicant has not cooperated with the investigation. Although, there is a report of Adjudicating Authority, but the same is not final, which is under challenge before the Appellate Tribunal. Reliance has been place in the matter of Union of India Vs. Hassan Ali Khan another, reported in (2011) 10 SCC 235, in which the Supreme Court cancelled the bail granted to the accused of PML Act, judgment of Orissa High Court dated 16.12.2013 in CRLMC No. 114 of 2011 (Smt. Janata another Vs. Assistant Director), wherein, the High Court refused to exercise the jurisdiction under Section 482 of the Cr.P.C. Judgment of Supreme Court dated 16.12.2015, in Criminal Appeal No. 1706 of 2015 (Gautam Kundu Vs. Manoj Kumar), in which, bail was refused to the accused of PML Act, judgment of High Court of Sikkim dated 17.09.2015 in WP (Crl.) No. 01 of 2015 (Eastern Institute for Integrated Learning in Management University Vs. The Joint Director others), in which, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on behalf of the objector- Kundan Singh Thakur, who has no direct concern with the present case, even then, the submission has been made by learned counsel for the objector, that the objector was petitioner in WP(PIL) No. 53 of 2018, in which, Division Bench of this Court has ordered for registration of FIR with respect to the corruption of public funds. It is submitted that this applicant is one of the persons, who had filed Review Petition No. 43 of 2020 against that order and the same has been dismissed again by the Division Bench of this Court, which has not been challenged. Reference of this decision and the review petition, has been made only to demonstrate that the applicant has criminal antecedent, therefore, he is not entitled for grant of bail. 15. In reply, learned counsel for the applicant submits that firstly, the objector has no locus standi to make any objection in the present case, as he is not at all concerned. It is submitted that the Adjudicating Authority has, while considering PAO, in which, the same material was present, which is the basis of the prosecution of the applicant in this case, has exonerated the applicant from charge of money laundering. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted as follows : (i) Adjudication proceeding and criminal prosecution can be launched simultaneously; (ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; (iii) Adjudication proceedings and criminal proceeding are independent in nature to each other; (iv) The finding against the person facing prosecution in the adjudication proceeding is not binding on the proceeding for criminal prosecution; (v) Adjudication proceedings by the Enforcement Directorate is not prosecution by a competent court of law to attract the provisions of Article 20 (2) of the Constitution or Section 300 of the Code of Criminal Procedure; (vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceeding is on technical ground and not on merit, prosecution may continue; and (vii) In case of exoneration, however, on merits where allegation is found to be not sustainable at all and person held innocent, criminal prosecution on the same set of facts and circumstances can not be allowed to continue underlyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time, the punishment to which the party may be liable, if convicted, also bears upon the issue of grant of bail. However, the gravity of offence as expressed, is required to be kept in view of the Court is related to the term of the sentence that has been prescribed for commission of such offence. 23. Reliance of the respondent side in Hassan Ali Khan (Supra), was a matter of bail cancellation, in which, the Apex Court has held that the cancellation of bail depends upon the post-bail incidents indicating misuse of bail privileges. Judgment of Apex Court in Gautam Kundu (Supra), was passed prior to the ratio laid down by the Apex Court in Nikesh Tarachand Shah (Supra), rejecting bail under Section 45 of the PML Act, hence, the same cannot be followed in the present case. High Court of Delhi has pleased to grant bail in the case of Upendra Rai (Supra). Although, the same has been stayed by the Supreme Court, but challenge to the bail order, has not yet been decided. 24. Under the present scenario, the applicant has the report of Adjudicating Authority in his favour, which has not been varied or set aside by the Appellate Authority so far. There is no specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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