TMI Blog2022 (11) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... rgesheet. The applicant is implicated in PMLA which was enacted to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Section 45 provides that offences punishable under PMLA are cognizable and non-bailable also provides stringent conditions in grant of bail. The applicant was implicated in present criminal complaint filed by the respondent/ED and arrayed as accused no 2. The investigating officer consciously did not arrest the applicant. The applicant participated in investigation as his three statements under section 50 PMLA were recorded. The respondent also did not allege that the applicant neither participated nor cooperated in investigation. The concerned Special Court after taking cognizance on present criminal complaint ordered for summoning of the accused persons including the applicant. The investigating officer even after filing of present complaint did not apply for custody of the applicant - There is legal force in argument advanced by the learned Senior Counsel of the applicant that applicant is entitled to bail in view of observations/legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elhi on basis of complaint received from Ashish Vinod Joshi, Chief Vigilance Officer, Yes Bank Limited against M/s Oyster Build well Private Limited and its holding company M/s Avantha Reality Limited, its Directors/Promoters namely Raghubir Kumar Sharma, Shri Rajendra Kumar Mangal, Shri Tapsi Mahajan and Gautam Thapar and unknown officials of M/s Jhabua Power Investment Limited, unknown known officials of Power Power Limited, unknown officials of M/s Avantha Holdings Ltd., unknown officials of M/s Avantha Power Infrastructure Ltd. and unknown bank officials. 2.1 Thereafter respondent filed CC No. ECIR/11/HIU 2021 dated 15.06.2021 under sections 44 and 45 of Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA ) for commission of offence of money laundering as defined under sections 3 and 4 of PMLA which is pending in the Court of Special Judge, PMLA, Rouse Avenue Courts. It is alleged in complaint that subsequent to the removal of Rana Kapoor i.e. the applicant from management of YES Bank on allegations of granting various credit facilities to several companies by not following the banking norms thereby causing huge amount of losses to the YES Bank in li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed Gautam Thapar filed a bail application bearing no. 4185/2021 before this court and said bail application was dismissed vide order dated 02.03.2022. 3. The applicant on 09.11.2021 filed an application for grant of bail under section 439 of the Code read with sections 45, 46(1) and 65 PMLA. The applicant in bail application pleaded that he was not arrested during investigation and was available during investigation and has extended full cooperation in investigation besides other grounds. The respondent filed reply to bail application. The respondent also filed additional reply whereby objected to grant of bail on the basis that since the applicant had not physically surrendered to the Trial Court and as such applicant was not entitled to file bail application. It is reflecting from order dated 20.11.2021 passed by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act) CBI-02, Rouse Avenue Courts that the respondent pleaded for first production of the applicant to be considered in the custody of the Court and the applicant has to be produced in physical form due to reason that application was filed under section 439 of the Code. The applicant was produced before the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey were working in different capacities. 74. During the course of the arguments, it has also been revealed that Mr. Rana Kapoor is wanted in one CBI case pertaining to DHFL, where the amount involved is Rs. 600 Crores approx. and one corresponding ED case of the same amount, it has also been revealed thathe is also wanted in another ED case of Macaktar of Rs. 200 Crores approx. and also one CBI case pertaining to Avantha Reality of Rs. 500 Crores as well as one more case pertaining to ED qua Cox and Kings, where he is stated to be on bail, therefore, this accused is having previous involvement in five different cases that too of huge magnitude. It was also argued by ED during the course of arguments that various loans of huge magnitude sanctioned during the tenure of A-2 have turned into non performing assets (NPAs). 75. Since huge loss of public money / funds is involved in present case, it needs to be viewed seriously and has to be considered as grave offence(s) affecting the economy of the country as a whole and thereby causing serious threat to the financial health of the country and since economic offences constitute a class apart, therefore, it needs to be visi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kapoor Vs. CBI Others, Rajiv Anand Vs. State of Maharashtra, decided on 28.09.2021 (supra), in a case pertaining to bail applications of certain family members of A-2, with regard to one RC lodged by CBI in DHFL case, it was held in para 16 by the Hon'ble Bombay High Court as under : 16. In any case, considering the three anterior stages, before converting a suspect to a convict, which involved a state of actual interrogation when an accused is taken in police custody, followed by the stage of judicial custody, which ensure completion of investigation and collection of the material in form of the final report to be placed before the Magistrate / Competent Court, which is duty bound to ensure a fair trial. It is only upon the presentation of the charge-sheet, where the full material is compiled together, the gravity of the offence could be judged and, the possibility of conviction of an accused being surfaced on the basis of the material coming before the Court in a crystallized form, prompted the learned Special Judge to reject the application for bail. Dispensation of arrest at the stage of investigation need not continue throughout and in particular, when the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted on behalf the respondent the applicant was not arrested during investigation in the present case as he was already in custody in another case. The applicant is on bail in other pending cases in which he was not arrested by the respondent during investigation. The learned Senior Advocate for the applicant referred para no 65 of Satinder Kumar Antil. 5. The learned Senior Advocate also argued that the applicant has fully cooperated during investigation. The applicant got recorded his statement under section 50 of the PMLA on three occasions while he was in judicial custody in Taloja Jail in another cases. He controverted oral submissions made on behalf of the respondent that the applicant has not co-operated in investigation and referred Santosh V State of Maharashtra, 2017 (9) SCC 714. 5.1 The learned Senior Advocate also advanced other miscellaneous arguments which are pendency of other cases or multiple FIRs is not a ground to deny bail; gravity of offence has to be considered on basis of severity of punishment; mere apprehension of tampering and influencing witnesses is not a ground to deny bail; the applicant is not a flight-risk; the applicant is entitled to ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.2 The learned Special Counsel for the respondent also referred Bimal Kumar Jain V Directorate of Enforcement, Bail Application bearing no 2438/2022 decided on 13.09.2022 wherein it was observed that even going by the judgment in Satender Kumar Antil when an accused is produced before the court without arrest, it had powers to act under section 88 of the Code to take a bond for appearance and that power has not been extinguished. The applicant has misinterpreted para 36 of Satiner Kumar Antil as the Supreme Court neither held that mandatorily accused has to be released on bail as per the provision section 170 of the Code nor held that the earlier categorization of offences and the guidelines regarding grant of bail in such a situation shall not apply. He also argued that section 170 of the Code and the guidelines for grant of bail in Satiner Kumar Antil do not apply to an accused who is already in custody since it applies only in cases where an accused is not arrested by the investigating agency and the charge sheet is filed without his arrest. 6.3 The learned Special Counsel for the respondent further argued that the applicant has misinterpreted para no. 65 of Satinder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n FIR registered by CBI but interrogated by the respondent/ED and his three statements were recorded under section 50 of the PMLA. The applicant was not arrested during investigation. The concerned trial court vide order dated 09.10.2021 acting on the Complaint took cognizance of the offence under sections 3 and 4 PMLA and summoned 21 persons /entities including the applicant to stand trial. The applicant was in custody at that time in Taloja Central Jail, Mumbai in any other case. The co-accused Gautam Thapar was taken into custody during investigation on 03.08.2021 who filed a bail application under section 439 of the Code read with sections 45/46(1)/65 PMLA before Special Court which was dismissed vide order dated 30.10.2021. Thereafter co-accused Gautam Thapar filed a bail application bearing no 4185/2021 which was dismissed vide order dated 02.03.2022. The applicant on 09.11.2021 filed an application for grant of bail under section 439 of the Code read with sections 45, 46(1) and 65 PMLA on grounds that he was not arrested during investigation and was available during investigation and has extended full cooperation in investigation besides other grounds. The applicant was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation including appearing before Investigating Officer whenever called. (No need to forward such an accused along with the chargesheet (Siddharth v. State of UP, 2021 SCC OnLine SC 615) 9.3 The Supreme Court further laid down as under:- CATEGORY A After filing of chargesheet/complaint taking of cognizance a) Ordinary summons at the 1stinstance/including permitting appearance through Lawyer. b) If such an accused does not appear despite service of summons, then Bailable Warrant for physical appearance may be issued. c) NBW on failure to failure to appear despite issuance of Bailable Warrant. d) NBW may be cancelled or converted into a Bailable Warrant/Summons without insisting physical appearance of accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing. e) Bail applications of such accused on appearance may be decided w/o the accused being taken in physical custody or by granting interim bail till the bail application is decided. CATEGORY B/D On appearance of the accused in Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppears to the officer in charge of the police station that there is sufficient evidence or reasonable ground as aforesaid, such officer shall forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit him for trial, or, if the offence is bailable and the accused is able to give security, shall take security from him for his appearance before such Magistrate on a day fixed and for his attendance from day to day before such Magistrate until otherwise directed. 9.5.1 The Supreme Court in relation and interpretation of section 170 of the Code observed as under:- 36. The scope and ambit of Section 170 has already been dealt with by this Court in Siddharth v. State of U.P., (2022) 1 SCC 676. This is a power which is to be exercised by the court after the completion of the investigation by the agency concerned. Therefore, this is a procedural compliance from the point of view of the court alone, and thus the investigating agency has got a limited role to play. In a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of the Special Act would get applied thereafter. It is only in a case where the accused is either not arrested consciously by the prosecution or arrested and enlarged on bail, there is no need for further arrest at the instance of the court. Similarly, we would also add that the existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code. 10. The applicant is implicated in PMLA which was enacted to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Section 45 provides that offences punishable under PMLA are cognizable and non-bailable also provides stringent conditions in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en into custody due to dismissal of bail application vide order dated 20.01.2022 passed by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act)(CBI)-02 Rouse Avenue District Court, New Delhi. The applicant primarily not seeking bail on merit but on basis of observation made by the Supreme Court in para no 65 of Satinder Kumar Antil decision and as such applicant is not required to pass the test of section 45 PMLA. The conditions as per section 45 PMLA would be applicable, had the applicant filed an application either under section 439 of the Code after arrest during investigation or under section 438 of the Code apprehending his arrest during investigation. As mentioned in present criminal complaint filed by the respondent, the applicant was not arrested during investigation by the investigating agency. There is legal force in argument advanced by the learned Senior Counsel of the applicant that applicant is entitled to bail in view of observations/legal proposition as laid down by the Supreme Court in Satinder Kumar Antil. It is not mandate of section 170 of the Code that if the accused is not taken into custody or arrested during investigation can be arrested or taken into c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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