Punjab-Haryana High Court
Mohit Kumar vs Directorate Of Enforcement on 14 March, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:037809
CRM-M-11428-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-11428-2024
Reserved on: 07.03.2024
Pronounced on: 14.03.2024
Mohit Kumar ...Pe oner
Versus
Directorate of Enforcement ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Harshit Sethi, Advocate (through V.C) and
Mr. Rahil Mahajan, Advocate for the pe oner.
Ms. Promila Nain, Senior Panel Counsel for the respondent-E.D.
****
ANOOP CHITKARA, J.
ECIR No. Dated Sec.ons
ECIR/JLZO/10/2021 31.03.2021 3 & 4 of Preven on of Money Laundering Act,
2002 [PMLA]
Complaint No. Dated Court
COMA 04/2023 24.07.2023 Special Court, SAS Nagar, Mohali
1. Aggrieved by the dismissal of the an cipatory bail, filed on issuance of summons, and later warrants by the trial court, in the complaint filed in the ECIR cap oned above, the pe oner apprehending arrest has come up before this Court under Sec on 438 CrPC seeking an cipatory bail.
2. In paragraph 6 of the bail applica on, the accused declares the following criminal antecedents, which is only of the predicate offence:
Sr. No. FIR No. Date Offences Police Sta on 1. 06 08.06.2017 420, 506, 120-B IPC and Vigilance Bureau, Phase-I, 13(1) (D) and 13(2) of District Mohali, Punjab the PC Act (Sec ons 465, 467, 468, 471 IPC added later on)
3. An offense under PMLA is comparable to the p of an iceberg. Just like the visible por on of an iceberg has an underneath mass, the proceeds of crime under PMLA must trace their roots to some predicate crime.
4. The predicate offence is taken from the reply filed by the Assistant Director for 1 1 of 13 ::: Downloaded on - 16-03-2024 12:09:14 ::: Neutral Citation No:=2024:PHHC:037809 CRM-M-11428-2024 Directorate of Enforcement and the relevant facts are being extracted as follows:
(1). An FIR No. 06 dated 08.06.2017 was registered under sec on 420, 506, 120-B of IPC and 13 (1)(d) r/w 13 (2) of Preven on of Corrup on (PC) Act 1988 and a Challan (under Sec ons 420, 465, 467, 468, 471, 506, 120-
B of IPC and Sec on 13 (1) (d) read with sec on 13 (2) of PC Act, 1988) dated 21.08.2017 was filed by P.S. Vigilance Bureau, Flying Squad-1, Punjab at Mohali against Surinder Pal Singh, Mohit Kumar, Gurmesh Singh Gill, Gurinder Pal Singh @ Tinku and Amit Garg and others. II. As per the informa on contained in the above said FIR and Challan, Surinder Pal Singh had worked as Execu ve Engineer, Superintendent Engineer and Chief Engineer and was posted at various offices of Punjab Mandi Board and Greater Mohali Area Development Authority (GMADA) from 2012 to 2017. During such pos ngs, he misused his official posi on and allo?ed mul -crore projects to his favoured firms/companies and thereby ensured illegal monetary gains for himself as well as various other persons belonging to his family and to the companies/firms/en es to which the illegal favours were extended by him.
III. During his pos ng at GMADA (Greater Mohali Area Development Authority), Surinder Pal Singh with mala-fide inten ons, deliberately designed the condi ons in various DNIT'S (Detailed No ce Invi ng Tender) to favour, inter-alia, M/s Ek Onkar Builders and Contractor Pvt. Ltd. (Controlling Person: Gurmesh Singh Gill), M/s Rajinder & Co. (Controlling person: Gurinder Pal Singh) and M/s Oasis Technocons Pvt. Ltd. (Controlling person: Amit Garg).
IV. Challans under sec on 173 (2) and (8) of Cr.P.C. were filed by the Vigilance Bureau in rela on to FIR No. 06 of 2017 registered against the main accused person Surinder Pal Singh and others including the above- named accused/pe oner. Trial in the case of FIR No. 06 of 2017 is currently ongoing and it is currently at the stage of Defence Evidence. V. In addi on to extending illegal help to his favoured companies through the mechanism of making tailor made DNITs for them, Surinder Pal Singh also allowed the bids from such en es even when they had insufficient capacity to par cipate in Bid. Further, he issued illegal Work Experience Cer ficates so as to make his favoured en es eligible for big scale government projects.
VI. For example, Surinder Pal Singh issued work experience cer ficate of value of Rs. 37 Crore to Ek Onkar Builders and Contractor Pvt. Ltd, for a 2 2 of 13 ::: Downloaded on - 16-03-2024 12:09:15 ::: Neutral Citation No:=2024:PHHC:037809 CRM-M-11428-2024 work which was not even allo?ed to this en ty by the Govt. and in fact the said work was done by it on sub-contract basis for an en ty which was the actual allo?ee of the said work. This Experience Cer ficate was used by M/s Ek Onkar Builders and Contractor Pvt. Ltd. to get a project of the value of 40.78 Crore. In absence of the said experience cer ficate M/s Ek Onkar Builders and Contractor Pvt. would have been ineligible to apply. VII. That, Surinder Pal Singh, while being posted at GMADA (Greater Mohali Area Development Authority) as Divisional Engineer (C-1), allo?ed more than 200 various works worth Rs. 1030 Crore. Out of that works, approx. Rs. 230 Crore of works were allo?ed only to M/s Ek Onkar Builders and Contractors Pvt. Ltd.
VIII. Similarly, by misusing his official posi on Surinder Pal Singh also illegally favoured another firm named M/s Rajindra and Company for which he not only ensured forced sub-contrac ng worth many crores to M/s Rajindra and Company from the en es to whom the Govt. contracts were actually allo?ed but also independently allo?ed high value projects of about Rs. 210 crores to it. He also issued work experience (value Rs. 75 crore) to this en ty for the project which was not even allo?ed to it (originally allo?ed to company M / s Centrodostroy India Pvt. Ltd.) and the same experience cer ficate was used by this en ty to get allo?ed high value project (Rs. 73.44 crore). The favoured company would not have been eligible to apply for if it had not received the illegal experience cer ficate.
IX. Further, it was also gathered that Vigilance Bureau Punjab had filed 02 addi onal FIRs against the suspect Surinder Pal Singh for amassing Dispropor onate Assets (FIR No. 13 dated 07.11.2017 regd. at P.S. Vigilance Bureau, Flying Squad-1, Punjab at Mohali under Sec on 120-B of IPC and Sec on 13 of PC Act, 1988 registered against Surinder Pal Singh, his wife Mandeep Kaur and mother Swaranjit Kaur).
5. Pe oner's counsel prays for bail by imposing any stringent condi ons and are also voluntarily agreeable to the condi on that ll the conclusion of the trial, the pe oner shall keep only one mobile number, which is men oned in AADHAR card, if any, and within fiGeen days undertakes to disconnect all other mobile numbers. The pe oner contends that custodial interroga on and pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
6. The Enforcement Directorate's counsel opposes the bail and states that the 3 3 of 13 ::: Downloaded on - 16-03-2024 12:09:15 ::: Neutral Citation No:=2024:PHHC:037809 CRM-M-11428-2024 pe oner is not en tled to bail unless he sa sfies the rigors of Sec on 45 of PMLA, which they have failed to do.
7. The allega ons against the pe oner which forms part of the ECIR and the complaint have been men oned in reply filed by the Assistant Director for Directorate of Enforcement and the relevant por on of reply are being extracted as follows:
XI. Inves ga on conducted under the provisions of PMLA, 2002 revealed that various immovable proper es and movable proper es were maintained in name of companies' M/s Access Agro Seeds Pvt. Ltd., M/s Auster Agro Traders Pvt. Ltd. M/s Award Agro Traders Pvt. Ltd., M/s Akme Crushiss & Builders Pvt. Ltd., M/s Ek Onkar Builders & Contractors Pvt. Ltd., Gurmesh Singh Gill, Mohit Kumar, Surinder Pal Singh @ Pehalwan, Mandeep Kaur, Swaranjit Kaur, Mohinder Singh HUF. The total value of proper es (movable & immovable) amoun ng to Rs 37,26,88,982/- were provisionally a?ached aIer following due process of law by the Authorized Officer vide Order dated 27.04.2023. Original Complaint (OC) in the said ma?er has been filed before the PMLA Adjudica ng Authority and the same was confirmed by the Adjudica ng Authority vide order dated 12.10.2023.
8. The role of the pe oner has also been taken from the aforesaid reply, which reads as follows:
"Allega ons against the accused Mohit Kumar are that he was indirectly indulged in laundering of the proceeds of crime of Surinder Pal Singh @ Pehalwan by purchasing immovable property in his name. The funds for purchasing the immovable property were received by way of transfer from seed company (ies) which are found to be bogus and were only created with the inten on to launder the proceeds of crime of Surinder Pal Singh.
He is the director and shareholder in the company M/s Ek Onkar Builders & Contractors Pvt. Ltd. on being inquired about the ini al source of funds for making his investment in the said company, he failed to furnish the details. At the relevant me when he was taken as a shareholder and director in the said company, company was opera onal and was running and was maintaining various assets and thus it cannot be possible that he would have got 50% shareholding (ownership) in the said company against his small investment amount of Rs.50,000/- only. He also stated that he was not the beneficial owner of the said company.4
4 of 13 ::: Downloaded on - 16-03-2024 12:09:15 ::: Neutral Citation No:=2024:PHHC:037809 CRM-M-11428-2024 Further, he had deliberately not revealed the name of actual beneficial owner of the said company during inves ga on.
Recently, the shareholding pa?ern of the said company has been modified and against the reduc on of shareholding, he has not received any funds from the said company. One more glaring fact came to fore during inves ga on that the father of said Mohit Kumar namely Hari Kishan was associated with Surinder Pal Singh from the me of his job at Punjab Mandi Board.
Despite being aware that he was holding the shareholding of 50% as a dummy shareholder in said company that too without any major investment, his inten on was to conceal the name of the ul mate beneficiary of said company and thus in the process, he has indulged, knowingly assisted and knowingly a party to the offence of money.
During inves ga on conducted under PMLA, Mohit Kumar a?empted to project tainted money of Surinder Pal Singh received through M/s Akme Crushers & Builders Pvt. Ltd. as untainted. Mohit Kumar had concertedly and knowingly assisted Surinder Pal Singh in laundering of proceeds of crime and is projec ng and claiming the property derived from proceeds of crime as untainted property."
9. Based on the predicate offence, the Enforcement Directorate filed a complaint bearing No. COMA 04/2023 on 24.07.2023 against 11 persons, including the present Pe oner, before the Addi onal Session Judge-I/Special Court, PMLA, Mohali, Ld. Court took cognizance on the same, vide order dated 08.12.2023 and ordered to summon all the accused persons for 19.01.2024. Further, on 19.01.2024, trial Court issued warrant of arrest against the accused persons for 01.03.2024, which has been further issued for 06.04.2024.
10. The pe oner, apprehended arrest on appearance before the trial Court and being sent to judicial custody, filed a pe on for an cipatory bail under Sec on 438 CrPC before the trial Court. Vide order dated 16.02.2024 passed in B.A. CIS No. 161 of 2024, the Special Judge, Mohali, dismissed the an cipatory bail.
11. Feeling aggrieved, the pe oner has come up before this Court seeking an cipatory bail.
12. I have heard counsel for the par es and gone through the pleadings and its analysis would lead to the following outcome.
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13. It would be relevant to refer the appropriate provisions of 'The Preven on of Money-Laundering Act, 2002' [PMLA]
14. [(3) PMLA]. Offence of money-laundering.--Whosoever directly or indirectly aNempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or ac vity connected with the [proceeds of crime including its concealment, possession, acquisi on or use and projec ng or claiming]1 it as untainted property shall be guilty of offence of money-laundering.
[Explana on.--For the removal of doubts, it is hereby clarified that,--
(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly aNempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or ac vi es connected with proceeds of crime, namely:--
(a) concealment; or
(b) possession; or
(c) acquisi on; or
(d) use; or
(e) projec ng as untainted property; or
(f) claiming as untainted property, in any manner whatsoever;
(ii) the process or ac vity connected with proceeds of crime is a con nuing ac vity and con nues ll such me a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisi on or use or projec ng it as untainted property or claiming it as untainted property in any manner whatsoever.]2
15. [{2(p)} PMLA]. "money-laundering" has the meaning assigned to it in sec on 3.
16. [{2(u)} PMLA]. "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal ac vity rela ng to a scheduled offence or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country]3 [or abroad]4; [Explana on.--For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal ac vity relatable to the scheduled offence;]5
17. [(4) PMLA]. Punishment for money-laundering.--Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine ***6:
Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this sec on shall have effect as if for the 1 Subs. by Act 2 of 2013, s. 3, for "proceeds of crime and projec ng" (w.e.f. 15-2-2013).2
Ins. by Act 23 of 2019, s. 193 (w.e.f. 1-8-2019).3
Ins. by Act 20 of 2015, s. 145 (w.e.f. 14-5-2015).4
Ins. by Act 13 of 2018, s. 208 (w.e.f. 19-4-2018).5
Ins. by Act 23 of 2019, s. 192 (w.e.f. 1-8-2019).6
The words "which may extend to five lakh rupees" omiNed by Act 2 of 2013, s. 4 (w.e.f. 15-2-2013).6
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18. [{2(y)} PMLA]. "scheduled offence" means--
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or
(iii) the offences specified under Part C of the Schedule.
19. In the predicate FIR No. 06 dated 08.06.2017, the offences registered are under sec on 420, 506, 120-B of IPC and 13 (1)(d) read with 13 (2) of Preven on of Corrup on (PC) Act 1988 and a Challan was filed under Sec ons 420, 465, 467, 468, 471, 506, 120-B of IPC and Sec on 13 (1) (d) read with sec on 13 (2) of PC Act, 1988.
20. The offences under sec ons 120-B, 420, 467,471 of IPC, have been no fied in the Part A, Paragraph 1, of the Schedule and the offences under sec ons 13 (1)(d) read with 13 (2) of Preven on of Corrup on (PC) Act 1988, have also been no fied in the Part A, Paragraph 8, of the Schedule.
21. A perusal of the complaint and order of summons, as well as the dismissal of an cipatory bail, explicitly points out that during the pendency of the inves ga on in the above-cap oned ECIR, the Enforcement Directorate inves gator did not arrest the pe oner. The reply does not men on any reasons for not arres ng the pe oner. The provision provided in the statute of The Preven on of Money-Laundering Act, 2002 [PMLA] for arrest and bail read as follows:
22. [(19) PMLA]. Power to arrest.--
(1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in wri ng) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest.
(2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately aGer arrest of such person under sub-sec on (1), forward a copy of the order along with the material in his possession, referred to in that sub-sec on, to the Adjudica ng Authority in a sealed envelope, in the manner, as may be prescribed and such Adjudica ng Authority shall keep such order and material for such period, as may be prescribed.
(3) Every person arrested under sub-sec on (1) shall, within twenty-four hours, be taken to a [Special Court or]7 Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdic on:
Provided that the period of twenty-four hours shall exclude the me necessary for the journey from the place of arrest to the [Special Court or]8 Magistrate's Court.7
Ins. by Act 13 of 2018, s. 208 (w.e.f. 19-4-2018).8
Ins. by Act 13 of 2018, s. 208 (w.e.f. 19-4-2018).7
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23. [(45) PMLA]. 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]9 shall be released on bail or on his own bond unless--]10
(i) the Public Prosecutor has been given a opportunity to oppose the applica on for such release; and
(ii) where the Public Prosecutor opposes the applica on, the court is sa sfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees]11 may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under sec on 4 except upon a complaint in wri ng made by--
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in wri ng in this behalf by the Central Government by a general or special order made in this behalf by that Government.
[(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall inves gate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such condi ons as may be prescribed.]12 (2) The limita on on gran ng of bail specified in ***13 sub-sec on (1) is in addi on to the limita ons under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the me being in force on gran ng of bail. [Explana on.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of condi ons under sec on 19 and subject to the condi ons enshrined under this sec on.]14
24. In Directorate of Enforcement v. M. Gopal Reddy, 2022 SCC OnLine SC 1862, decided on February 24, 2022, Hon'ble Supreme Court holds, [33]. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Sec on 45 of the Act, 2002 shall be applicable even with respect to the applica on under Sec on 438 Cr. P.C. and therefore, the impugned judgment and order passed by the High Court gran ng an cipatory bail to respondent No. 1 herein in connec on with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 is unsustainable.
9Subs. by Act 13 of 2018, s. 208, for "punishable for a term of imprisonment of more than three years under Part A of the Schedule" (w.e.f. 19-4-2018).
10Subs. by Act 20 of 2005, s. 7, for certain words, figures, brackets and leNers (w.e.f. 1-7-2005).
11Ins. by s. 208, ibid., (w.e.f. 19-4-2018).
12Ins. by Act 20 of 2005, s. 7 (w.e.f. 1-7-2005).
13The words, brackets and leNer "clause (b) of" omiNed by s. 7, ibid. (w.e.f. 1-7-2005).
14The Explana on ins. by Act 23 of 2019, s. 200 (w.e.f. 1-8-2019).
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25. The order dated 20.11.2023 passed by the Hon'ble Supreme Court in SLP (Crl.) No. 12803 of 2023 tled as Rajesh Kumar Versus The Directorate of Enforcement, reads as follows:
"We have carefully perused the complaint filed under Sec on 45 of the Preven on of Money Laundering Act, 2002 which runs into 190 pages. It shows that detailed inves ga on has been carried out. In fact in July, 2018, on two occasions, statements of the appellant have been recorded. What is per nent to note is that even during the course of inves ga on, Directorate did not arrest him. the Enforcement Considering these peculiar facts, the interim order passed on 13th October, 2023 deserves to be made absolute on the same terms and condi ons."
26. Similarly, the order dated 15.12.2023 passed by the Hon'ble Supreme Court in SLP (Crl.) No. 11992 of 2023 tled as Gurinder Singh Versus Directorate of Enforcement, reads as follows:
"Leave granted.
Heard the learned senior counsel appearing for the appellant and the learned Addi onal Solicitor General appearing for the respondent.
AIer comple on of inves ga on, yesterday, a complain under Preven on of Money Laundering Act, 2002 has been filed. The rejoinder affidavit shows that the appellant has cooperated for inves ga on.
Accordingly, the interim order dated 18th September, 2023 is made absolute subject to the further condi on that the appellant shall always remain present before the trial Court and shall cooperate with the trial Court for disposal of the case."
27. In Dalip Singh Mann and another v. Niranjan Singh, Assistant Director, Director of Enforcement, CRM No.M-28490 of 2015, decided on 01.10.2015, a division bench of Punjab & Haryana High Court holds, [5]. Having given our thoughYul considera on to the submissions, we are sa sfied that no purpose shall be served by puZng the pe oners in judicial custody pending trial in the Statutory Complaint. We say for the reasons that:
(i) It is an admiNed fact that during inves ga on of the money laundering case, the pe oners were never arrested by the Enforcement Directorate in exercise of its powers under Sec on 19 of the Act;
(ii) The assets created by the pe oners with the alleged aid of proceeds of crime have already been seized/aNached;
(iii) It is not the case of Enforcement Directorate that any private vulnerable witness is to depose against them. It would, thus, be too much presumptuous at this stage that the pe oners would tamper with the evidence;
(iv) The maximum sentence for an offence under the Act is 7 years though it may extend to 10 years if the case falls under proviso to Sec on 4 of the Act;
(v) It further appears that rigors of Sec on 45(1)(ii) of the Act would be aNracted only while considering the bail plea of an accused who has been arrested by the E.D. Under Sec on 19 of the Act;
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(vi) The complaint is at the ini al stage and its adjudica on will take me.
[6]. Taking into considera on the totality of the circumstances, the interim order dated 26.8.2015 is made absolute.
28. In Mahdoom Bava v. Central Bureau of Inves ga on, 2023:INSC:262 [Para 10-11], Law Finder Doc Id # 2165475, Cr. No.853 of 2023, decided on 20.03.2023, Supreme Court holds, [10]. More importantly, the appellants apprehend arrest, not at the behest of the CBI but at the behest of the Trial Court. This is for the reason that in some parts of the country, there seems to be a prac ce followed by Courts to remand the accused to custody, the moment they appear in response to the summoning order. The correctness of such a prac ce has to be tested in an appropriate case. Suffice for the present to note that it is not the CBI which is seeking their custody, but the appellants apprehend that they may be remanded to custody by the Trial Court and this is why they seek protec on. We must keep this in mind while deciding the fate of these appeals.
[11]. In the case of the prime accused, namely Shri Mahdoom Bava, an addi onal argument advanced by the learned Addi onal Solicitor General is that he was involved in eleven other cases. But the tabula on of those eleven cases would show that seven out of those eleven cases are complaints under sec on 138 of the Nego able Instruments Act, 1881 and three out of those seven cases are actually inter-par es and not at the instance of the Bank. The eighth case is a complaint filed by the Income Tax Officer and it relates to the nonpayment of TDS amount. The remaining three cases are the cases filed by CBI, one of which is the subject maNer out of which the above appeals arise. [12]. In view of the aforesaid, we are of the considered view that the appellants are en tled to be released on bail, in the event of the Court choosing to remand them to custody, when they appear in response to the summoning order. Therefore, the appeals are allowed and the appellants are directed to be released on bail, in the event of their arrest, subject to such terms and condi ons as may be imposed by the Special Court, including the condi on for the surrender of the passport, if any.
29. Reference be also made to paras 10 & 11 of Aman Preet Singh v. CBI, 2021 (4) RCR (Criminal) 108: (2021) SCC Online SC 941.
30. In the light of the judicial precedents cited above, it is not a case to deny an cipatory bail.
31. When the Inves ga ng agency did not arrest, but the trial court wants judicial custody on filing the complaint [ECIR], there must be reasons to deny bail, which are non-existent.
32. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal v. State (NCT of 10 10 of 13 ::: Downloaded on - 16-03-2024 12:09:15 ::: Neutral Citation No:=2024:PHHC:037809 CRM-M-11428-2024 Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
33. Given above, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
34. In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponen al growth in technology and ar ficial intelligence has transformed iden fica on techniques remarkably. Voice, gait, and facial recogni on are incredibly sophis cated and pervasive. Impersona on, as we know it tradi onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus ce, then in such cases, appropriate condi ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
[21] In this era when the knowledge revolu on has just begun, to keep pace with exponen al and unimaginable changes the technology has brought to human lives, it is only fiZng that the dependence of the accused on surety is minimized by giving alterna ve op ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
35. Provided the pe oner is not required in any other case, the pe oner shall be released on bail in the ECIR and Complaint cap oned above, in the following terms:
(a). Pe oner to furnish personal bond of Rs. One Lac (INR 100,000/); AND
(b) To give one surety of Rs. Five lacs (INR 500,000/-), to the sa sfac on of the concerned concerned Court, before whom the bonds are required to be furnished. Before accep ng the surety, the concerned officer/court 11 11 of 13 ::: Downloaded on - 16-03-2024 12:09:15 ::: Neutral Citation No:=2024:PHHC:037809 CRM-M-11428-2024 must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b). Pe oner to hand over to the concerned inves gator/court a fixed deposit for Rs. Rs. One Lac (INR 100,000/), with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favor of the concerned Court. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe oner to prepare an account payee demand draG favouring concerned Chief Judicial Magistrate for a similar amount.
(c). Such Court shall have a lien over the funds un l the case's closure or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). The pe oner is to also execute a bond for aNendance in the concerned Court as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.
(e). While furnishing personal bond, the pe oner shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the court aNes ng the bonds thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
36. The pe oner is directed to aNend the trial on each date, except for an unavoidable jus ciable cause, on which date the pe oner shall appear through their counsel and shall not claim any prejudice in this regard.
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37. The pe oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the ED and Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
38. Pe oner to comply with their undertaking made in the bail pe on, made before this court through counsel. If the pe oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic m/complainant may file any such applica on for the cancella on of bail, and the State shall file the said applica on. Otherwise, the bail bonds shall remain in force throughout the trial and aGer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
39. Any observa on made herein above is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
40. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a?est it to be a true copy. In case the concerned Court wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a?es ng bonds.
Pe..on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
14.03.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: NO.
Neutral Citation No:=2024:PHHC:037809
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