TMI Blog2021 (6) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in respect of the offences as enumerated under Section 438(4) of Cr.P.C. and also in respect of offence under special statute wherein jurisdiction under Section 438 of Cr.P.C. has been specifically ousted, even if the offences are non-bailable, a person cannot invoke the jurisdiction under Section 438 of Cr.P.C. seeking prearrest bail. Since in this case the petitioner has been indicted in an economic offence which is of serious in nature and the larger angle of conspiracy with regard to patronage of political and other persons in growth of such ponzi firms are required to be unearthed, no effective investigation can be made by the police by enlarging the petitioner on pre-arrest bail, even if he is ready and willing to cooperate with the investigation by remaining on pre-arrest bail. The allegation being serious in nature and the offence committed being economic offence and the petitioner is being investigated, custodial interrogation is much more fruitful as held by the Apex Court in the case of P. Chidambaram [ 2019 (9) TMI 286 - SUPREME COURT ], this Court is of the view that the petitioner has made out no case for his release on pre-arrest bail, more particularly when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... However, in compliance with the order dated 09.05.2014 passed by the Supreme Court of India in two writ petitions, such as, W.P. (Civil) No.401 of 2013 and W.P.(Civil) No.413 of 2013, total forty-four number of such cases were taken over / registered by the then C.B.I. / S.C. / C.I.T./KOL (now renamed as C.B.I./EO-IV-Kol.) and the present case, i.e., R.C. 31(S) of 2014 is one amongst those forty-four cases. It may be mentioned here that the present case had earlier been registered in Odisha vide EOW/Odisha/BBSR P.S. Case No.13 dated 06.05.2013 on the basis of a report lodged by one Rabi Narayan Swain, and the C.B.I. on taking over the said case registered the same as R.C. 31(S) of 2014 on 05.06.2014 against Sudipta Sen and others of Saradha Group of Industries for the offences under Sections 120-B read with Sections 406 and 420 of IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1973, and submitted charge-sheet on 13.12.2016 in the Court of the Special C.J.M. (CBI), Bhubaneswar, under Section 120-B read with Sections 420 and 409 of IPC and Sections 4, 5 and 6 of the Prize Chits and Money Circulation Scheme (Banning) Act, 1973 against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extract money from them, and in the midway he cancelled the agreements after getting illegal benefits of crores of rupee from those ponzi firms, to the ultimate loss and suffering of gullible depositors / investors. While being in custody in connection with I-core case, the Investigating Officer in the present case got the petitioner notionally arrested and sought for his remand before the Special C.J.M. (C.B.I.), Bhubaneswar. However, in the meanwhile the case having been committed under Section 44(1)(c) of the PMLA Act to the PMLA Court, the Special C.J.M.(C.B.I.), Bhubaneswar expressed its inability to remand the petitioner in the present case. At that stage, the petitioner came to challenge his notional arrest before this Court by filing an application vide CRLMC No.1618 of 2019 wherein this Court for his non-production within twenty-four hours of his arrest before the appropriate Magistrate, held his notional arrest to be an otiose while giving liberty to the C.B.I. to seek production and remand of the petitioner from the appropriate Court where the case is pending. The production of the petitioner in the present case pending before the Special Court under the PMLA Act, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res of rupee which belonged to gullible depositors. In the present case, the petitioner aided the principal accused Sudipta Sen to escape from SEBI enquiry and promote his business of collection of money from public, by publishing advertisement of Saradha Group in his newspaper Ek-din and lobbying for the ponzi firm in Ministry of Finance of Government of India. (ii) Custodial interrogation of the petitioner is essential to know as to whether any other benefits have been received by him from Saradha Group and other ponzi companies, whether there has been diversion of money from Saradha Group to any other influential persons directly or indirectly, whether there were other patrons of Saradha Group, whether the petitioner has diverted his ill-gotten money to anybody else etc. (iii) Being a media person the petitioner is in contact with many influential persons, and there is every chance of his tampering with evidence and threatening / influencing material witnesses, and not cooperating with the investigation. (iv) Economic offences constitute a class apart, having serious social ramification, and there being prima-facie materials to show the petitioner s involvemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 8. Before addressing the contention of the parties with regard to the merit of the prayer of the petitioner for pre-arrest bail, it would be apposite to address the technical questions raised by the petitioner regarding the case being committed to the PMLA Court though in the said case neither the petitioner nor any of the accused persons already charge-sheeted is prosecuted for any offence under the PMLA Act, so also the Authority of the PMLA Court to try a scheduled offence along with the case registered under the PMLA Act against some accused persons for the proceeds of crime of the scheduled offence. Such contention of the petitioner appears to be without any substance in view of the provisions contained in Section 44 of the PMLA Act that the PMLA Court is competent to try a scheduled offence on a case being committed on the prayer of the Enforcement Directorate, if a case is already registered under the PMLA Act, allegedly for proceeds of crime of such scheduled offence and Section 71 of the PMLA act has overriding effect on the other provisions. So far as the contention that the independent registration of a PMLA case with regard to scheduled offence by the PMLA Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n with some other cases in Kolkata and in those occasions he had not been taken to custody. But, the same ipso facto cannot be a ground to question the bona fides of C.B.I. to seek his arrest / custody in the cases of Saradha Group of Companies. 9. Having regard to the materials on record, existence of a prima-facie case regarding nexus of the petitioner with the Saradha Group cannot be denied. Grant of bail to him by the Supreme Court of India in another case also cannot afford him a ground to seek pre-arrest bail in the present case, inasmuch as he was granted bail in the said case solely on health ground while he was admitted in Apollo Hospital, Bhubaneswar. Admittedly, he has since been discharged from the said hospital. 10. The learned counsel appearing for the C.B.I. has laid much emphasis on the fact that since the petitioner has been indicted in an economic offence and sufficient materials are there showing his indictment in the aforesaid serious offence and need of the custodial interrogation of the petitioner to unearth the involvement of any other persons and the larger angle of conspiracy in commission of the offence alleged to have been committed by the ponzi fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and offence of money laundering are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation s economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the Appellate is necessary. 80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and Ors. MANU/SC/0288/1987: (1987) 2 SCC 364, it was held as under: 5. . The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y hamper the effective investigation. Having regard to the materials said to have been collected by the Respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 11. However, learned counsel for the petitioner placing placed reliance on a decision of the Apex Court in the case of Sushila Aggarwal (supra), submitted that there is no restriction in Section 438 of Cr.P.C. to entertain a prayer for bail in respect of the person accused in economic offences. Hence, the contention that since the petitioner has been indicted in economic offence, he should not extended the benefit of pre-arrest bail, appears to be fallacious. 12. There is no reproach on such contention of the counsel for the petitioner with regard to invoking the jurisdiction under Section 438 of Cr.P.C. in respect of the person accused of committing economic offences, inasmuch as there is no such prohibition to entertain such prayer in respect of the accused persons indicted in economic offences in Section 438 of Cr.P.C., provided the offence committed is non-bailable one. It is only in respect of the offences as enum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is in its place. 70. Likewise, in Directorate of Enforcement v Deepak Mahajan this court referred to Maxwell on Interpretation of Statutes, Tenth Edn., to the effect that if the ordinary meaning and grammatical construction: (scc PP.453-54, PARA 25) 25 leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words 71. This court, long back, in State of Haryana Ors. v. Sampuran Singh Ors . observed that by no stretch of imagination a Judge is entitled to add something more than what is there in the statute by way of a supposed intention of the legislature. The cardinal principle of construction of statute is that the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. It is sufficient, therefore to notice that when Section 438 in the form that exists today, (which is not substantially differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 14. Controverting to the contention of the learned counsel for the C.B.I. that custodial interrogation of the petitioner is much more fruitful for investigation to unearth the larger conspiracy and, as such, the petitioner should not be released on pre-arrest bail, learned counsel for the petitioner would submit that the same is fallacious in view of the observation made by the Apex Court in the case of Gurbaksh Singh Sibbia (supra) in paragraph-19 which reads as thus:- 19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter alia, the power under Section 438 should not be exercised if the investigating agency can make a reasonable claim that it can secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act. According to the High Court, it is the right and the duty of the police to investigate into offences brought to their notice and therefore, courts should be careful not to exercise their powers in a manner which is calculated to cause interference therewith. It is true that the functions of the Judiciary and the police are in a sense complementary and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v. Deoman Upadhyaya to the effect that when a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him, he may appropriately be deemed to have surrendered himself to the police. The broad foundation of this rule is stated to be that Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. For similar reasons, we are unable to agree that anticipatory bail should be refused if a legitimate case for the remand of the offender to the police custody under Section 167 (2) of the Code is made out by the investigating agency. In the case of Gurbaksh Singh Sibbia (supra), even if it is held that a legitimate case for remand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail if it thinks fit . The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law. Further, in the case of P. Chidambaram (supra) the Apex Court having specifically stated that grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the Accused and in collecting the useful information and also the materials which might have been concealed and success in such interrogation would elude if the Accused knows that he is protected by the order of the Court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. 15. Since in this case the petitioner has been indicted in an economic offence which is of serious in nature and the larger angle of conspiracy with regard to patronage of political and other persons in growth of such ponzi f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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