TMI Blog2022 (10) TMI 518X X X X Extracts X X X X X X X X Extracts X X X X ..... he is allowed exemption. The undertaking in that particular paragraph is also there to the effect that he will appear in person as and when deemed fit by the learned court. On the record, there is nothing to suggest that due to the petitioner at any point of time, the investigation has been delayed. It has been disclosed that the petitioner has cooperated under section 50 of the PMLA Act. Admittedly, the allegation against the petitioner is of taking bribe of Rs.5 lakhs and proviso to section 45 of the PMLA Act speaks of that if the proceed is less than of rupees one crore, the bail can be granted. The law is well settled that as per sub-section 1 of section 205 Cr.P.C., whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. As per sub-section 2 of section 205 of the Cr.P.C, the Magistrate in inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in a manner hereinbefore provided. Thus, the learned Magistrate has a discretion to dispense wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 05/2021, corresponding to CNR-JHRN01-002561-2022, pending in the same learned court. 3. The complaint was filed under sections 44 and 45 of the Prevention of Money Laundering Act, 2002 [hereinafter to be referred to as PMLA Act, 2002, for short] alleging therein that (i) the complaint case under the PMLA Act, 2002 has been initiated against the petitioner on the basis of the F.I.R. registered by the C.B.I., A.C.B., Dhanbad being RC1(A)/2020-D dated 10.02.2020, (ii) that it is stated that the aforementioned F.I.R. by the C.B.I., A.C.B., Dhanbad was registered against the petitioner on the basis of one complaint filed by Amit Sarawgi alleging, inter alia, that the petitioner being Insolvency Professional demanded a bribe of Rs.2 lacs per month from Amit Sarawgi for showing leniency in the insolvency resolution process for extending corporate insolvency resolution process from 9 months to two years and also demanded one time bribe of Rs.20 lacs from Amit Sarawgi for obtaining favourable forensic audit/valuation report from identified forensic auditor/valuer and for helping in repossession of plant/company by Amit Sarawgi and (iii) the C.B.I., A.C.B., Dhanbad after investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 the petitioner visited the office of N.Khetadas Machine Tools Works Pvt. Ltd., Giridih, where the petitioner was arrested by C.B.I for allegedly accepting bribe from Amit Sarawagi. The petitioner did not receive or possess any money even as per the allegation as the money was seized by the CBI and FIR was registered. He submitted that merely on the allegation in R.C case that a sum of Rs.3 lakhs allegedly bribe money was seized an ECIR was registered by ED and the investigation started. He submitted that neither any proceeds of crime was found or possessed by the petitioner nor any proceeds of crime was projected to be untainted money by the petitioner. The C.B.I submitted the charge-sheet under section 7 of the P.C.Act on 31.12.2020. The statement of the petitioner was recorded under section 50 of the PMLA Act on 10.08.2021 and the cognizance was taken by order dated 22.12.2021 under sections 3 and 4 of the PMLA Act and thereafter, the petitioner filed a petition under section 205 of the Cr.P.C. before the Special Judge, PMLA Act but the same was rejected vide order dated 09.05.2022. On these grounds, he submitted that the matter was taken up by this Court on 18.7.2022 and in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner again to jail even though he has been granted bail for the scheduled offence. The E.D has already filed its complaint after completing the investigation and hence there is no requirement of any interrogation much less custodial interrogation. He submitted that the petitioner undertakes to submit any personal bond for securing his physical presence as and when required by the learned trial court. In these backgrounds, he submitted that the learned trial court has not taken into consideration the spirit of section 205 Cr.P.C in its right direction. He relied in the case of Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695, particularly paragraph nos.2, 2.1, 2.2. 4.3 and 5 of the said judgment which are quoted as under: 2. That the appellant is Accused 3 in the case pertaining to the charge-sheet bearing CC No. 12 of 2013 pending before the learned Principal Special Judge for CBI Cases, Hyderabad. That the appellant was summoned by the learned trial court vide order dated 13-5-2013 for the offences punishable under Sections 120-B read with Sections 420, 409 IPC and Sections 9, 12, 13(2) read with Sections 13(1)(c) and (d) of the Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.3. Now, so far as the reliance placed by the learned counsel appearing on behalf of the appellant upon the decisions of this Court in Bhaskar Industries Ltd. [ Bhaskar Industries Ltd. v. Bhiwani Denim Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254] and Rameshwar Yadav [Rameshwar Yadav v. State of Bihar, (2018) 4 SCC 608 : (2018) 2 SCC (Cri) 585] is concerned, it is submitted by the learned Additional Solicitor General that the said decisions shall not be applicable to the facts of the case on hand looking to the graveness and seriousness of the offences involved. It is submitted that in Bhaskar Industries Ltd. [ Bhaskar Industries Ltd. v. Bhiwani Denim Apparels Ltd., (2001) 7 SCC 401 : 2001 SCC (Cri) 1254], it was a case for the offence under Section 138 of the Negotiable Instruments Act and in Rameshwar Yadav [Rameshwar Yadav v. State of Bihar, (2018) 4 SCC 608 : (2018) 2 SCC (Cri) 585], it was a case for the offences under Section 498-A IPC and Section 4 of the Dowry Prohibition Act. It is submitted that, in the present case, the allegations against the appellant are for the offences punishable under Section 120-B read with Sections 420 and 409 IPC and Sections 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has been granted exemption from attending the court. 5. He submitted that the case of Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. and Others, (2001) 7 SCC 401 , was considered in the case of Puneet Dalmia(supra), wherein true spirit of section 205 Cr.P.C has been explained by the Hon ble Supreme Court. He further submitted that identical was the situation before the Kerala High Court in the case of Moosa Pattupara v. the State of Kerala, 2022 SCC OnLine Ker 915 and Arun Baby v. The State of Kerala, 2021 SCC OnLine Ker 2415. Further he relied in the case of Riaz Khan Faridi v. The State of Jharkhand through Central Bureau of Investigation and analogous case in Cr.M.P.No.2557 of 2016 and Cr.Revision No.1422 of 2016 decided by the judgment dated 09.08.2017 and submitted that after considering the judgments, the case arising under section P.C. Act registered by the C.B.I, the coordinate Bench of this Court quashed the order rejecting the petition under section 205 Cr.P.C. Referring to this judgment, he submitted that the petitioner has already filed the petition before the learned Court and giving the undertaking that he will not dispute his presence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leness. He submitted that for exemption of appearance before the court under section 205 Cr.P.C, moreso, in view of allegation and the materials on the basis of which the prima facie case is found to be made out against the petitioner, he is otherwise not entitled for privilege of bail and there is no question of allowing the petition under section 205 Cr.P.C. On this ground, he submitted that the petition is fit to be dismissed. 7. In view of the above submissions of the learned counsels appearing on behalf of the parties, the Court has gone through the materials on record. Admittedly, the petitioner has been summoned by the learned court in ECIR 05/2021 in which the petition in the nature of Misc. Criminal Application No.362 of 2022 was filed under section 205 Cr.P.C which was rejected by the learned court by order dated 09.05.2022. For correct appreciation of section 45 of the PMLA Act, 2002, it is quoted hereinbelow: 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 [under this Act] shall be released on bail or on his own bond unless-] (i) Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person is of age of 16 years or a woman or sick or infirm. In the case in hand, it has been submitted that the petitioner has suffered from Covid-19 twice and he is having ailments and on that ground, he has filed a petition before the learned court. In the petition filed under section 205 Cr.P.C before the learned court and certified copy of which is on the record, it has been disclosed in paragraph no.12 that the petitioner undertakes in it that he will not dispute his identify during trial if he is allowed exemption. The undertaking in that particular paragraph is also there to the effect that he will appear in person as and when deemed fit by the learned court. It has been stated that the petitioner will not hide his identity or dispute the same. In the petition here it has been disclosed that the petitioner will also not challenge the proceeding on the ground that his trial has been held in his absence or witnesses were deposed in his absence. There is no doubt that the principles for grant of exemption has been discussed by the Hon ble Supreme Court in the case of Bhaskar Industries Ltd.(supra) can be made applicable to the facts and circumstances of each case. On the record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take into account the magnitude of the sufferings which a particular accused person may have to bear with in order to make himself present in the court in that particular case. 9. The purpose of exemption under section 205 Cr.P.C is that the order of the learned magistrate should be such which does not make any unnecessary harassment to the accused and at the same time does not cause any prejudice to the complainant and the learned court is required to ensure that exemption from personal appearance granted to the accused is not an abuse or delay the trial. The coordinate Bench of this Court in the case of Riaz Khan Faridi v. The State of Jharkhand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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