TMI Blog2024 (2) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... gency. In Pokar Ram v. State of Rajasthan and others [ 1985 (4) TMI 341 - SUPREME COURT ], the Apex Court had observed that relevant considerations governing the court's decision in granting anticipatory bail under Section 438 Cr.P.C. are materially different from those when an application for bail by a person who is arrested in the course of investigation. It further held that courts must be cautious and circumspect in exercising powers of anticipatory bail as it intrudes the sphere of investigation. In Vijay Madanlal Choudhary and Others Vs. Union of India and Others [ 2022 (7) TMI 1316 - SUPREME COURT] the Apex Court observed we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. Looking to the nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst M/s Garvit Innovative Promoters Ltd. (in short GIPL ) and Sanjay Bhati, its promoter and other directors on the basis of complaints filed by its various investors/customers. 5. Pursuant to registration of F.I.R s under the scheduled offences, an ECIR/LKZO/05/2019, dated 29.06.2019 was filed in Lucknow Zonal Office of Directorate of Enforcement/respondent no. 1 against the accused persons for offence under Section 3 of Prevention of Money Laundering Act, 2002. Investigation in the said matter was being done in which the statements of various persons including the applicant was recorded on 20.3.2020 and in April 2020. Subsequently a complaint dated 19.8.2020 was filed by the Deputy Director, Directorate of Enforcement, Lucknow numbered as Original Complaint No. 1333/2020 in Provisional Attachment No. 05/2020 dated 20.7.2020, Deputy Director, Directorate of Enforcement, Lucknow Zonal Office vs. M/s Garvit Innovative Promoters Ltd. and 17 others, with the following prayers:- Under the facts and circumstances stated hereinabove, it is most humbly prayed that the Hon ble Adjudicating Authority may kindly be pleased to:- a. Take this complaint on record for the purposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rruption (C.B.I.), Ghaziabad vide order 30.11.2023 is before this Court with the prayers as aforesaid. 8. The case as per the complaint is that the main complaint was filed against Manoj Kumar Tyagi in February 2021 on which cognizance was taken by the court concerned vide its order dated 25.01.2022. Public had invested money in scheme titled as BIKE BOT Scheme floated by M/s Garvit Innovative Promoters Limited of which Sanjay Bhati was Chief Managing Director. As per the company it had initiated a taxi service like Ola, Uber and people can invest in their plan and get assured monitory return by paying Rs. 62,100/- per Bike, the investor would get Rs. 9,765/- per month for 12 months. It was assured further that if anyone invests in 03, 05 or 07 bikes, he would get bonus of Rs. 4,590/-, Rs. 9,180/-, Rs. 13,770/- respectively. After 12 months bike would be the property of investor. Agreements in this regard were executed by Sanjay Bhati as Managing Director of the company. On the said assurance many people invested money in the scheme and after some returns to some of them, company stopped monthly return from December 2018. On asking for it cheques drawn on Nobel Co-operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the applicant on one hand argued that the applicant is adequately protected by the said order of the Apex Court but at the same time he does not resort to appropriate proceedings before the appropriate forum for non compliance of the order of the Apex Court. He has apprehension of arrest and as such it is prayed the applicant may be granted anticipatory bail till such terms. Stand of the applicant thus is blowing both hot and cold at the same time at one hand he takes up the case that he adequately protected by an order of the Apex Court which has not been followed by the authority/agency concerned and as such he intends to proceed against them under the appropriate forum but at the appropriate time and on the other hand submits that since the applicant is under an apprehension of arrest he may be granted anticipatory bail. 11. This Court is at a loss to appreciate what the learned counsels for the applicant want to impress upon the Court. At one hand the case is that the applicant is already protected by an order of Court but at the other anticipatory bail is being prayed for. The present anticipatory deserves to be dismissed on this ground alone. 12. However, sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing laundered. He has thus intentionally assisted in the process and activity connected with the proceeds of crime and as such has committed offence. He was arrested in predicate offence and a charge sheet has also been filed against him. 14. Learned counsels for the applicant argued that :- (1) the applicant is Chairman of Bhasin Group of Companies having in it M/s Bhasin Infotech and Infrastructure Pvt. Limited which was incorporated on 23.5.2006. On 05.08.2006 land was allotted to it by UPSIDC on which commercial tower namely Grand Venezia Commercial Tower was built. (2) GIPL transferred Rs. 61 Crore to the company of the applicant for which he sold out and gave possession of a commercial space in the said commercial tower to GIPL. (3) The applicant is not involved in BIKE BOT Scam . (4) The applicant has been granted bail in Case Crime No. 385/2019, under Sections 409, 420, 467, 468, 471, 201, 120B I.P.C., Police Station Dadri, District Gautam Budh Nagar and in Case Crime No. 353/2019, under Sections 409, 420, 467, 468, 471, 201, 120B I.P.C., Police Station Dadri, District Gautam Budh Nagar vide a common order dated 4.3.2021 passed by another Bench of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W, Delhi) [Para 10.1.1.5 of the supplementary affidavit], 46 cases pertaining to Grand Venice project of Bhasin Group of Companies (41 cases lodged in the State of Uttar Pradesh and 5 cases lodged in Delhi) [Para 10.1.2.2 of the supplementary affidavit], 7 cases lodged in the year 2023 in District Gautam Budh Nagar (U.P.) [Para 10.1.2.7 of the supplementary affidavit] and 13 cases pertaining to Festival City project of Bhasin Group of Companies [Para 10.1.3 of the supplementary affidavit]. Charge sheet against the applicant has been submitted in the predicate offence. (8) It is prayed that anticipatory bail application be thus rejected. 16. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is the director of Bhasin Group of Companies in which property is alleged to have been sold and possession has been given to GIPL and Independent TV Ltd. GIPL is a company which is involved in a scam of a very large magnitude. The case of the applicant is of selling and giving possession of a commercial space to GIPL. No concrete documents regarding said transactions could be produced during inquiry before the Enforcement Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and if the Court passes any order granting anticipatory bail, such order shall include inter alia the following conditions, namely: (i) that the applicant shall make himself available for interrogation by a police officer as and when required; (ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) that the applicant shall not leave India without the previous permission of the Court; and (iv) such other conditions as may be imposed under sub - section (3) of section 437, as if the bail were granted under that section. Explanation: The final order made on an application for direction under sub - section (1); shall not be construed as an interlocutory order for the purpose of this Code. (3) Where the Court grants an interim order under sub - section (l), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court unfortunately fell into an error in mixing up all the considerations, as if all the three become relevant in the present situation. 6. The decision of the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab [(1980) 2 SCC 565 : 1980 SCC (Cri) 561] clearly lays down that the distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest . Unlike a post-arrest order of bail, it is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. A direction under Section 438 is intended to confer conditional immunity from the touch as envisaged by Section 46(1) or confinement. In para 31, Chandrachud, C.J. clearly demarcated the distinction between the relevant considerations while examining an application for anticipatory bail and an application for bail after arrest in the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... committed in the heat of the 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 community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest, as was aptly stated in State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364 : AIR 1987 SC 1321] . 20. In the case of P. Chidambaram Vs. Directorate of Enforcement : (2019) 9 SCC 24 , the Apex Court while dealing with an anticipatory bail in a matter relating to economic offence held as under: Grant of anticipatory bail in exceptional cases 69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 CrPC is an extraordinary power and the same ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [ Y.S. Jagan Mohan Reddy v. CBI , (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552], the Supreme Court held as under : (SCC p. 449, paras 34-35) 34 . Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having 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. 35 . While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. (emphasis s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find any ground warranting interference with the impugned order [ P. Chidambaram v. CBI , 2019 SCC OnLine Del 9703]. Considering the facts and circumstances of the case, in our view, grant of anticipatory bail to the appellant will hamper the investigation and this is not a fit case for exercise of discretion to grant anticipatory bail to the appellant. 21. Further in the case of Directorate of Enforcement Vs. M. Gopal Reddy and another : 2022 SCC Online SC 1862 the Apex Court in paragraph 32 reiterated the observations of the Court in economic offence matters as stated in the case of P. Chidambaram (supra) and observed as under: 32. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. 22. In the case of Pratibha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Procedure Code, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] subsection (1) is in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 24. In the case of Asst. Director, Enforcement Directorate Vs. Dr. V.C. Mohan : 2022 SCC OnLine SC 452 the Apex Court obserevd as under: 4. It is one thing to say that Section 45 of the PMLA Act to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered although the application is under Section 438 of Code of Criminal Procedure. 25. In Vijay Madanlal Choudhary and Others Vs. Union of India and Others : 2022 SCC OnLine SC 929 the Apex Court observed as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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