Orissa High Court
Jagabandhu Chand vs Directorate Of Enforcement ... ... on 10 October, 2023
Author: G. Satapathy
Bench: G. Satapathy
IN THE HIGH COURT OF ORISSA AT CUTTACK
BLAPL No.2635 of 2023
(In the matter of application under Section 439 of the
Code of Criminal Procedure).
Jagabandhu Chand .... Petitioner
-versus-
Directorate of Enforcement ... Opposite Party
For Petitioner : Mr. J.Pal, Advocate
For Opposite Party : Mr. G.Agarwal, Advocate
(E.D.)
CORAM:
JUSTICE G. SATAPATHY
DATE OF JUDGMENT : 10.10.2023
G. Satapathy, J.
1. This is a bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with Complainant Case (PMLA) Case No.10 of 2022 for BLAPL No.2635 of 2023 Page 1 of 21 commission of offence Under Section 3 of the Prevention of Money Laundering Act, 2002 (In short "PMLA") which is punishable Under Section 4 PMLA pending in the file of learned District and Sessions Judge, Khurda at Bhubaneswar.
2. An overview of the facts involved in this case are on 02.10.2022, one FIR was registered against the Petitioner and others vide Khandagiri PS Case No. 496 of 2022 for commission of offences punishable Under Sections 341 / 328 / 324 / 354-C/ 370 /386 /387/ 388/389/419/420/465/506/120-B of Indian Penal Code (in short IPC), 1860 and Under Section 66-E/67 of the Information Technology Act, 2000(In short the "IT Act"), but before registration of this case, another case was also registered against the co-accused person for similar offences. In the FIR against the Petitioner and others, the Petitioner and other co-accused person had extorted BLAPL No.2635 of 2023 Page 2 of 21 crores of Rupees from different rich people by blackmailing them to get their video footage containing objectionable and inappropriate photographs viral. The aforesaid case was investigated into by the local police, but in the course of investigation, the Assistant Director of Enforcement, Bhubaneswar claiming the offences alleged against the Petitioner and others to be scheduled offences as defined Under Section 2(1y) of the PMLA instituted a complaint against the Petitioner and others before the special Court under PMLA, Bhubaneswar for commission of offence U/S. 3 of PMLA which is punishable U/S. 4 of PMLA. It is stated in the complaint that soon after registration of the aforesaid police case, PMLA Case No.10 of 2022 was recorded against the Petitioner and others for commission of aforesaid offence under PMLA and the matter was investigated into by ED. It is also BLAPL No.2635 of 2023 Page 3 of 21 alleged in the complaint that the Petitioner and others had generated illegal income of Crores of Rupees through extortion by way of honey trapping rich and influential people and making their nude videos and threatening as well as blackmailing them for lodging false police cases and getting their nude videos viral in social media and, thereby, the income of the Petitioner and others are proceeds of crime as defined Under Section 2(1)(u) of the PMLA. This is how the complaint against the Petitioner and others came to be instituted for commission of offences Under Sections 3/4 of PMLA.
3. Heard, Mr.J.Pal, learned counsel for the Petitioner and Mr. G.Agrawal, learned counsel for the ED extensively. In support of their individual contentions, learned counsels for both the parties have filed short written notes of submission by relying upon the number of decisions, which would BLAPL No.2635 of 2023 Page 4 of 21 be discussed if found relevant in subsequent paragraph. While arguing on merit, learned counsel for the Petitioner has also urged the ground of sickness of the Petitioner to grant him bail by extending the benefit of proviso appended to the mandatory provision of Section 45(1) of the PMLA.
4. Undeniably, the provisions as to bail are founded on the philosophy of protecting the most precious individual liberty of a person which is guaranteed under Article 21 of our sacred Constitution, but grant or refusal of bail to a person accused of offence is the discretion of the Court, however, such discretion should not be arbitrary or whimsical. Article 21 of the Constitution of India always reminds that the personal liberty is paramount and sacrosanct and no person shall be deprived of his personal liberty except according to the procedure established by law. On the other BLAPL No.2635 of 2023 Page 5 of 21 hand, the object of bail is primarily to prevent punishment in the form of imprisonment or incarceration of a person pending investigation, inquiry and trial. Deprivation of personal liberty of a person accused of offence without lawful excuse amounts to pre trial punishment. In Satender Kumar Antil Vrs. Central Bureau of Investigation and another; (2022) SCC Online SC 825, the apex Court has emphasized the personal liberty in the following words:-
"Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and the essential requirements of a modern man."
5. Adverting to the rival submissions, this Court at the inception engages itself to answer as to whether the stipulation as contained in Section 45(1) of PMLA can be relaxed to grant regular bail to BLAPL No.2635 of 2023 Page 6 of 21 the Petitioner. Undeniably, right to health is an integral part of right to life as guaranteed under Article 21 of the Indian Constitution, but such right to health cannot be refused to a person facing a criminal charge, even such right cannot be denied to a convict found guilty for graver offence. It is indisputably an obligation of the State to provide adequate and effective medical treatment to every person, even to a under trial or convict. Above view get supports from the decision from Pt. Parmanananda Katara Vrs. Union of India and others; (1989) 4 SCC 286, wherein the Apex Court has emphasized the preservation of life, both of an innocent person or a criminal liable to be punishment in the following words.
"....7. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of BLAPL No.2635 of 2023 Page 7 of 21 man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment."....
6. Keeping in view the aforesaid principle, this Court right now focuses to the proviso to Section 45(1) of the PMLA which was in fact carved out as an exception to empower and provide discretion to the Special Court to grant bail on humanitarian and medical grounds and, thereby, relaxing the strict compliance of the twin conditions enumerated in Section 45(1) of the PMLA, but the aforesaid discretion is required to be exercised in a judicious manner. The proviso to Section 45(1) of the PMLA confers discretion on the Court to grant bail to a person who is under the age of 16 years or is a woman or is sick or infirm, or is accused either on BLAPL No.2635 of 2023 Page 8 of 21 his own or along with other co-accused of money laundering a sum of less than One Crore Rupees without insisting upon them for strict compliance of the twin conditions of Section 45(1) of PMLA.
7. It is, therefore, clear that an accused person who is sick in terms of proviso to Section 45(1) of PMLA can be granted bail without insisting upon him the strict compliance of the conditions enumerated therein, but who can be considered as a sick or what would be the level of sickness that would bring the accused within the parameters of "sick" has not been precisely defined or explained either in the PMLA or in any other act governing the provisions of bail. Normally, "sick" means suffering from disease or illness or unwell or ill and one who needs medication, but mere sickness, such as suffering from fever or illness which can be treated in the jail without any difficulty cannot be considered as "sick" BLAPL No.2635 of 2023 Page 9 of 21 so as to entitle the accused to bail in view of the exception to Section 45(1) of the PMLA. In this regard, this Court considers it apt to refer to the decision in Pawan Alias Tamator Vrs. Ram Prakash Pandey and another; (2002) 9 SCC 166, wherein the Apex Court while setting aside the order of Allahabad High Court granting bail to the accused inter-alia on the ground of ailment of the applicant, has held as under:-
"The ailment of the accused was not of such a nature as to require him to be released on bail and the accused can always apply to the jail authorities to see that he gets the required treatment."
8. In Kewal Krishnan Kumar Vrs.
Enforcement Directorate; (2023) SCC Online Delhi 1547, it has been held by High Court of Delhi as under:-
"25. xxx when the sickness or infirmity each of such a nature i.e. life threatening and requires medical BLAPL No.2635 of 2023 Page 10 of 21 assistance that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to Section 45(1) of the PMLA".
9. In the backdrop of aforesaid discussions and keeping in view the principle governing the field on this issue, this Court is of the considered view that the sickness which are not only life threatening, but also serious and requires special medical attention and which the jail authority cannot provide in the jail would normally be considered as a ground for grant of bail to an accused by relaxing the strict compliance of Section 45(1) of the PMLA by giving benefit of the proviso appended thereto. Granting bail on mere sickness by extending the proviso appended to Section 45(1) of the PMLA will render the aforesaid proviso otiose. However, the aforesaid proviso may be invoked in genuine cases, where the sickness of the Applicant cannot be treated in jail BLAPL No.2635 of 2023 Page 11 of 21 and such sickness would endanger the life of the applicant.
10. Reverting back to the sickness ground of the Petitioner in this case, it appears that on being agreed by learned counsel for both the parties, this Court by an order requested the AIIMS, Bhubaneswar to constitute a medical board to examine the petitioner as to the necessity of "Tracheostomy" for him and in response to such request of this Court, the AIIMS, Bhubaneswar by showing good gesture for cause of justice had constituted a medical board of seven Doctors under the leadership of Professor Manash Ranjan Sahoo which board after examining the Petitioner and on going through the records co-relating the examination test findings of unanimous conclusion that the "Tracheostomy tube" of the Petitioner can be removed after admission at AIIMS, Bhubaneswar BLAPL No.2635 of 2023 Page 12 of 21 Hospital. It, therefore, very clear that the "Tracheostomy tube" cannot be removed in the jail by taking the help of medical expert. Needless to mention here that "Tracheostomy" is a surgically created hole in the windpipe (Trachea) of a person that provides an alternative airway for breathing. Since Tracheostomy is related to alternative airway for breathing, it is definitely a serious ailment and the medical board report clarifying it being not removable without admission in Hospital, the aforesaid sickness of the Petitioner is considered to be the nature of sickness within the meaning of "sick" as provided in first proviso to Section 45(1) of the PMLA. It is, thus, answered that the Petitioner can be released on bail without insisting upon him the strict compliance of the twin conditions of Section 45(1) of the PMLA Act by way of relaxation BLAPL No.2635 of 2023 Page 13 of 21 in terms of the proviso to Section 45(1) of the PMLA Act.
11. Mr. Agrawal, learned counsel for the ED, however, has relied upon the decision in Vijay Agrawal Through Parokar Vrs. Directorate of Enforcement; (2022) SCC Online Delhi 4130 and the judgment of High Court of Kerala in BLAPL No. 2166 of 2023 (M. Sivasankar Vrs. Union of India and another) to contend that the Petitioner's sickness may not be considered in terms of the aforesaid proviso, but such submission appears to have no direct bearing in the present case inasmuch as the ailment of the accused in Vijay Agrawal (Supra) was not in the nature of the ailment of the Petitioner nor was it life threatening nor was the treatment of the applicant not possible in the jail. Further in M. Sivasankar (Supra), the High Court of Kerala did not give the benefit of proviso to BLAPL No.2635 of 2023 Page 14 of 21 Section 45(1) of the PMLA to the applicant- Sivasankar by holding that Sivasankar did not have any serious illness and in the earlier time also, he was granted bail by relaxing the rigor of Sec. 45(1) of the PMLA on medical ground, but when he was released on bail, he joined duty and also continued in service till his retirement without undergoing any further treatment.
12. According to the complaint of ED, the details of movable property owned and acquired by Jagabandhu(Petitioner) as alleged was for a value of Rs. 17,49,389/-, besides allegation of assisting his wife in layering and placing the proceeds of crime generated by her as a result of criminal activity relating to schedule offence in his account and the Petitioner and his wife were alleged to have an immovable property i.e. residential building with an investment of Rs. 3.39 Crores whose present market BLAPL No.2635 of 2023 Page 15 of 21 value is assessed at 3.64 Crores and this is the main substratum of allegation against the Petitioner and his wife. The complaint under PMLA also refers to another FIR in Nayapalli P.S. FIR No. 646 of 2022, but the said FIR was registered only against co- accused, but not against the present petitioner and charge sheet was only submitted against co-accused Archana Nag. Besides, it is informed by learned counsel for the ED that the complaint in PMLA now stands posted for execution of warrant issued against co-accused, but the petitioner in the meanwhile has been detained in custody since 13.12.2022 being remanded and the case record against the petitioner has not been separated. Further, the petitioner was subjected to custodial interrogation by the ED. What is more significant is that the other reason that might delay the trial in this case is the fact that co-accused is yet to be BLAPL No.2635 of 2023 Page 16 of 21 arrested. In such situation, it is quite uncertain as to when the trial will commence and how much time it would require for completion. In the aforesaid premises and on a cumulative assessment materials placed on record, this Court has no hesitation to consider that the petitioner has successfully demonstrated his case for relaxation of compliance of Section 45(1) of PMLA by way of the benefit of proviso appended to it.
13. Furthermore, while dealing bail application, three factors are mainly required and the accused is required to satisfy the tripod test:- (i) flight risk, (ii) tampering of evidence and (iii) influencing of witnesses. In the circumstance of the case, the petitioner does not appear to be a flight risk and such apprehension can be arrested by directing the petitioner to surrender his Passport if any. Since the complaint has been filed, there appears little BLAPL No.2635 of 2023 Page 17 of 21 apprehension of tampering evidence by the petitioner and the third one i.e. influencing witnesses can be curbed by imposing appropriate conditions. Further, the petitioner has already remained in custody for near about ten months.
14. A cumulative discussions of facts and allegation as noticed above and taking into consideration the pre trial detention of the Petitioner for near about ten months with uncertainty prevailing about execution of NBWA against co- accused affecting the commencement of the trial and, thereby, conclusion of trial being not possible in near future and regard being had to the nature of "sickness" of the Petitioner which allows him to obviate the rigor of compliance of the provision of Section 45(1) of the PMLA by way of relaxation, this Court considers that the Petitioner has made out a case for grant of bail.
BLAPL No.2635 of 2023 Page 18 of 21
15. The bail application of the petitioner stands allowed and the petitioner may be released on bail on furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees Two lakhs) with two local solvent sureties each for the like amount to the satisfaction of the learned Court in seisin of the case on such terms and conditions as deem fit and proper by it with following additional conditions:-
(i) The petitioner shall not commit any offence while on bail and he 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 Officer of ED or tamper with the evidence,
(ii) The petitioner shall appear before the Court in seisin of the case on each and every date of posting without fail unless his attendance is dispensed with and in case the Petitioner fails without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioner for offence U/S.229-A of IPC in accordance with law, BLAPL No.2635 of 2023 Page 19 of 21
(iii) The petitioner shall deposit his Passport, if any, in the Court in seisin of the case till conclusion of trial, unless he is permitted to take back such Passport to use for specific purpose during the pendency of case.
(iv) The Petitioner shall inform the Court as well as the ED as to his place of residence during the trial by providing his mobile number(s), residential address, e-mail, if any, and other documents in support of proof of residence.
(v) In case the petitioner misuses the liberty of bail and in order to secure his presence, proclamation U/S.82 of Cr.P.C. is issued and the petitioner fails to appear before the Court on the date fixed in such proclamation, then, the learned trial Court is at liberty to initiate proceeding against him for offence U/S.174-A of the IPC in accordance with law.
(vi) The Petitioner shall appear before the ED as and when required and shall cooperate with the ED in the present case.
It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the Petitioner without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. BLAPL No.2635 of 2023 Page 20 of 21
It is, however, made clear that nothing stated in the order shall be construed as a final expression or opinion on the merits of the case and the trial would proceed independently of the observation made above and such observation has been made purely for the purpose of adjudication of the present bail application.
Accordingly, the BLAPL stands disposed of.
(G. Satapathy) Judge Signature Not Orissa VerifiedHigh Court, th Cuttack, Digitally Signed Dated the 10 of October, 2023/Priyajit Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Oct-2023 13:24:08 BLAPL No.2635 of 2023 Page 21 of 21