Satinder Singh Bhasin vs Directorate Of Enforcement Zonal ... on 13 February, 2024

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Allahabad High Court

Satinder Singh Bhasin vs Directorate Of Enforcement Zonal ... on 13 February, 2024

2. Heard Ms. Katyayini and Shri Shishir Tandon learned counsels for the applicant, Sri Jitendra Prasad Mishra learned counsel for the Directorate of Enforcement / Opposite party No. 1 and Sri Ajay Singh learned AGA-I and Sri Sai Girdhar, learned counsels for the State/ Opposite party No. 2 and perused the records.

3. The present Anticipatory Bail Application has been filed by the applicant Satinder Singh Bhasin with the following prayers:-

"A. Pass the necessary Orders and Directions granting the Applicant herein Anticipatory Bail in the present matter i.e. Sessions Case No. 06/2023 titled "Directorate of Enforcement vs. Sanjay Bhati & Ors.", under Section 3 and 4 of the Prevention of Money Laundering Act, 2002 on such terms and conditions as this Hon'ble Court deems just, fit and proper:

AND B. Pass appropriate order(s) or direction(s) that Mr. Satinder Singh Bhasin, the Applicant/Accused may be granted interim protection from arrest during the pendency of the present application;

AND C. Pass such other or further Order(s)/Direction(s) as this Hon'ble Court may deem fit and proper."

4. The present case relates to matter known as "Bike Bot Scam". Many First Information Reports were lodged under Sections 406, 420, 471, 506, 120B I.P.C. and other sections against 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 of adjudication under Section 8 of the said Act and declare that the property under attachment is involved in money laundering;

b. Order confirmation of the Provisional Attachment Order No. 05/2020 dated 20.07.2020 in ECIR No. ECIR/LKZO/05/2019, under Section 8(3) of the Prevention of Money Laundering Act, 2002, read with Regulation 23 of Adjudication Authority Regulations, 2006;

6. A supplementary complaint dated 13.1.2022 under Section 45 read with Section 70 of the PMLA, 2002 for offence punishable under Section 3 of the Act was filed by the Assistant Director (PMLA), Directorate of Enforcement, against Sanjay Bhati and 18 others in which the applicant was arrayed as accused no. 16 and M/s Bhasin Infotech and Infrastructure Private Limited through its Director Sri Satinder Singh Bhasin was arrayed as accused no. 17 with the following prayers:-

"It is, therefore, most humbly prayed that:-

This Hon'ble Court may be pleased to take cognizance of the offerice against the aforesaid accused persons/ entities for coramitting the offence of Money Laundering as defined under Section 3 and punishable under Section 4 of the Prevention of Money Laundering Act, 2002 and issue process against all the accused parses and try and punish the accused in accordance with law.

This Hon'ble Court may be pleased to order for confiscation of the proceeds of crime properties involved in the money laundering in accordance with the provisions of sub section (5) of Section 8 of Prevention of Money Laundering Act, 2002 which have bean provisionally attached vide Provisional Attachment Order No. 05/2020 dand 20.07.2020, u/s 5(1) of the PMLA, 2002, in ECIR Na. ECIR/LKZO150819 confirmed by the Ld. Adjudicating Authority on 14.01.2021.

To permit the complainant to file additional Complaint (supplementary complains, if any, on completion of further investigation which is still ongoing Pass such other orders as this Hon'ble Court may deem fit and proper on the focta and in the circumstances of the case.

It is prayed accordingly."

7. The court of Special Judge took cognizance upon the said complaint and summoned the accused persons including the applicant vide order dated 28.5.2022 for offences under Sections 3 and 4 of Prevention of Money Laundering Act, 2002. The applicant thus after rejection of his anticipatory bail by the Special Judge, Anti Corruption (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 Bank in favour of the investors being post dated cheques were given to them, which on presentation were dishonoured on account of insufficient funds in the account of GIPL. The applicant is director of M/s Bhasin Infotech and Infrastructure Pvt. Limited and M/s Grand Venezia, Commercial Towers Private Limited. Funds were diverted to shell companies for concealing the true purpose of collecting it and for rotation. Investigation revealed that 26 immovable properties worth Rs. 1,00,48,78,800.00 were identified as being obtained from the proceeds of crime and were attached provisionally vide order dated 20.07.2020 of the concerned Adjudicating Authority. Further more, proceeds of crime were identified in various banks of M/s Gravit Innovative Promoters Ltd. and Sanjay Bhati which were under their control amounting to Rs. 2,21,93,055.23.

9. Learned counsel for the applicant at one hand argued that the applicant is adequately protected by an order of the Apex Court passed in Writ Petition(s) (Criminal) No(s). 197 of 2021 (Satinder Singh Bhasin vs. State of U.P. and another) in which in the order dated 6.7.2021 the court had directed that the said order will enure to the petitioner in connection with the F.I.Rs. mentioned in the writ petition or any other F.I.Rs. to be filed including for the other provisions/enactments invoked against the petitioner on the basis of said F.I.Rs. It was further directed that in case the State of U.P. intends to proceed against the petitioner in connection with any other independent offence they must take prior permission of the court. The said order has been placed before the Court which is annexure no. 8 to the affidavit. It is argued that since the applicant has been granted bail by the said order with further directions that the same would also apply to the present case. It is argued that the order of the Apex Court has been ignored by Enforcement Directorate and by the trial court and they have proceeded to file the complaint against the applicant on which the applicant has been summoned by the court concerned and as such the order is not being followed by the concerned authority and thus the applicant has apprehension that he will be arrested. It is argued that the applicant shall be undertaking further action as advised for non-compliance of the order of the Apex Court at the appropriate time.

10. Learned counsel 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, since learned counsels for the applicant proceed, press and argue the matter on merit also by placing submissions at length, the Court deems it proper to deal with the matter independently and on merits also.

13. The allegations against the applicant are that he is the promoter and director of Bhasin Group of Companies i.e. M/s Bhasin Infotech and Infrastructure Pvt. Limited, M/s Vinamr Infrastructure Private Limited, M/s Grand Venezia, Commercial Towers Private Limited etc. which has received approximately Rs.61 crore from G.I.P.L. and its sister company M/s Independent TV Limited against which he has shown allotment and handing over of possession of office space in its property named as M/s Grand Venezia, Commercial Towers Limited. Cash money collected in GIPL was deposited in Nobel Bank and Grand Venice Mall from where it was invested in purchase of Nobel Buildtech, Grand Venice (Bhasin Group). Cash was one time given to the applicant. GIPL was partnered in various companies of the applicant. In total Rs. 150 crore including cash were paid to them for 33% share in Grand Venice Mall, 50% share in hotel and commercial complex and 50% in Festive City which was under construction. No refunds have been received by GIPL and no agreement was singed between them. Harjeet Singh and Bhasin Group of companies was paid crores of rupees from the account of GIPL. The applicant on inquiry submitted that funds were received in the accounts of M/s Bhasin Infotech and Infrastructure Pvt. Limited and M/s Grand Venezia, Commercial Towers Private Limited. The documents as submitted relating to allotment and handing over of possession of commercial space to GIPL and Independent TV Limited were considered to be fake documents in the inquiry. No sub-lease was registered in respect of allotment of commercial space to GIPL and Independent TV Limited. He had opened a bank account in Noble Co-operative Bank at NOIDA where GIPL and Independent TV Limited were having their accounts. The said bank was under control of Vijay Kumar Sharma who is also an accused in the scam. Rs. 25 crore was received in the bank account of M/s Vinamr Infrastructure Private Limited having account no. 50200009642147 from GIPL on 05.12.2018 and the same was immediately transferred to the personal account of the applicant having account no. 1690700006208 on 06.12.2018 which would go to show that money was being 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 Court in Criminal Misc. Bail Application No. 4012 of 2021 (Satinder Singh Bhasin vs. State of U.P.) which was connected with Criminal Misc. Bail Application No. 8209 of 2021 (Satinder Singh Bhasin@Montu vs. State of U.P.) and as such he is on bail in the predicate offence.

(5) The allegation is of solitary transaction of allotment of commercial space to GIPL in a commercial building of the applicant.

(6) The space, as allotted, was given in possession of GIPL by the applicant which has been attached by Enforcement Directorate and is under attachment till date. There is nothing on record to show that the applicant is involved in money laundering.

(7) The applicant as such be granted anticipatory bail in the present matter.

15. Per contra, learned counsel for the Enforcement Directorate vehemently opposed the prayer for anticipatory bail and argued as under:-

(1) The applicant is named in the supplementary complaint as an accused along with his company.

(2) Rs. 61 Crore was received in the account of Bhasin Group from GIPL and Independent TV Limited out of which Rs. 25 crore was transferred on the very next day in the personal account of the applicant.

(3) Scrutiny of data by the Enforcement Directorate revealed that around 1.75 lakh investors having multiple ID invested around Rs. 2894.40 crores in "BIKE BOT scheme" of GIPL and the company had made payments to them to the tune of Rs.1665.45 crores only.

(4) There is no credible evidence on record to show that there has been proper functioning of the company of the applicant in allotment of land in question. The documents as produced during inquiry were found to be fake documents. Complete documents pertaining to the transactions were not provided by the applicant despite several opportunity and ample time afforded to him.

(5) Section 45 (i) and (ii) of the Prevention of Money Laundering Act, 2002 puts a bar on grant of bail as the twin conditions laid down in the said sections are not made out.

(6) The applicant has been evading process of court continuously since 28.5.2022 and as such there are good chances of his absconding.

(7) The applicant on his own showing in para 10 of his supplementary affidavit dated 22.12.2023 has a long criminal history reported to be of 119 cases pertaining to Bike Bot scam (118 cases lodged in the State of Uttar Pradesh and 1 case lodged at EOW, 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 Directorate. Admitted case of the applicant is of receipt of Rs. 61 crore in the company account of Bhasin Group from company account of GIPL and Independent TV Ltd., both belong to Sachin Bhati. Subsequently Rs. 25 crore from the same was transferred to the personal account of the applicant on the very next date from the account of Bhasin Group. The applicant has been summoned by the trial court vide order dated 28.05.2022. Since then without proceeding to appear before the court concerned, he has been absconding till date. The said property as stated to have been sold out to GIPL is under attachment by Enforcement agency.

17. Section 438 of the Code of Criminal Procedure, 1973 as introduced in the State of Uttar Pradesh on 06.06.2019 reads as follows :-

"438. (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:--

(i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice; and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested;

either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant, the applicant on the basis of the accusation apprehended in such application.

(2) Where the High Court or, as the case may be, the Court of Session, considers it expedient to issue an interim order to grant anticipatory bail under sub-section (1), the Court shall indicate therein the date, on which the application for grant of anticipatory bail shall be finally heard for passing an order thereon, as the Court may deem fit, 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 reasonable opportunity of being heard when the application shall be finally heard by the Court.

(4) On the date indicated in the interim order under sub - section (2), the Court shall hear the Public Prosecutor and the applicant and after due consideration of their contentions, it may either confirm, modify or cancel the interim order.

(5) The High Court or the Court of Session, as the case may be, shall finally dispose of an application for grant of anticipatory bail under sub-section (l), within thirty days of the date of such application.

(6) Provisions of this section shall not be applicable,--

(a) to the offences arising out of, --

(i) the Unlawful Activities (Prevention) Act, 1967;

		(ii) the Narcotic Drugs and Psychotropic Substances 			      Act, 1985;
 
		(iii) the Official Secret Act, 1923;
 
		(iv) the Uttar Pradesh Gangsters and Anti Social 	  		       Activities (Prevention) Act, 1986. 
 
	(b) in the offences, in which death sentence can be awarded.

(7) If an application under this section has been made by any person to the High Court, no application by the same person shall be entertained by the Court of Session."

18. In Pokar Ram v. State of Rajasthan and others : (1985) 2 SCC 597, 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 execising powers of anticipatory bail as it intrudes the sphere of investigation. It is held as under:

"5. Relevant considerations governing the court's decision in granting anticipatory bail under Section 438 are materially different from those when an application for bail by a person who is arrested in the course of investigation as also by a person who is convicted and his appeal is pending before the higher court and bail is sought during the pendency of the appeal. Three situations in which the question of granting or refusing to grant bail would arise, materially and substantially differ from each other and the relevant considerations on which the courts would exercise its discretion, one way or the other, are substantially different from each other. This is necessary to be stated because the learned Judge in 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 investigation. Says the learned Chief Justice that in regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. It was observed that "it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond". Some of the relevant considerations which govern the discretion, noticed therein are "the nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and 'the larger interests of the public or the State', are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail". A caution was voiced that "in the evaluation of the consideration whether the applicant is likely to abscond, there can be no presumption that the wealthy and the mighty will submit themselves to trial and that the humble and the poor will run away from the course of justice, any more than there can be a presumption that the former are not likely to commit a crime and the latter are more likely to commit it".

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11. ....... Anticipatory bail to some extent intrudes in the sphere of investigation of crime and the court must be cautious and circumspect in exercising such power of a discretionary nature. ......."

19. In the case of Ram Narain Poply v. Central Bureau of Investigation: (2003) 3 SCC 641 the Apex Court while considering a matter of economic offence held in para 382 as under:

"382. The cause of the community deserves better treatment at the hands of the court in the discharge of its judicial functions. The community or the State is not a persona non grata whose cause may be treated with disdain. The entire community is aggrieved if economic offenders who ruin the economy of the State are not brought to book. A murder may be 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 has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.

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78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510] , it was held that in economic offences, the accused is not entitled to anticipatory bail.

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80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 : 1987 SCC (Cri) 364], it was held as under : (SCC p. 371, para 5) "5. ... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of 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."

81. Observing 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 supplied)

82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 : 1998 SCC (Cri) 261], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720 : 1999 SCC (Cri) 1045], while hearing an appeal by the Enforcement Directorate against the order [Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21-7-1998 (Bom)] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.

83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.

84. In a case of money-laundering where it involves many stages of "placement", "layering i.e. funds moved to other institutions to conceal origin" and "interrogation i.e. funds used to acquire various assets", it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma [State v. Anil Sharma, (1997) 7 SCC 187 : 1997 SCC (Cri) 1039], success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the Department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating 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 Manchanda v. State of Haryana : (2023) 8 SCC 181 the Apex Court has enumerated the factors for considering the relief of anticipatory bail. It has been held as under:

"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tight rope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each individual case becomes crucial to ensure a just outcome."

(emphasis supplied)

23. Section 45 of the Prevention of Money-Laundering Act, 2002 reads as under:

"Section 45-Offences to be cognizable and nonbailable.-- (1) [Notwithstanding anything contained in the Criminal Procedure Code, 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) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied 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-acc used of money-laundering a sum of less than one crore rupees], 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 Section 4 except upon a complaint in writing made by--

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

[(1-A) Notwithstanding anything contained in the Criminal 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:

"412. As a result, 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."

26. Looking to the nature of case, gravity of offence, the facts that the present matter relates to an economic offence, the fact that the applicant has not joined the trial court concerned despite issuance of summons to him, the law as laid down by the Apex Court, the fact regarding receipt of money from the companies and transfer of it in his personal account, the magnitude of offence, the fact that the property in question stands attached by the Enforcement authorities as a part of laundered money and the rigours of the twin conditions of Section 45 of the PMLA, 2002, the applicant being charge sheeted in the predicate offence and the long criminal antecedents of the applicant, this Court does not find it to be a fit case to grant anticipatory bail to the applicant.

27. The present anticipatory bail application under Section 438 Cr.P.C. is, accordingly, rejected.

(Samit Gopal,J.) Order Date :- 13.02.2024 Naresh

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Allahabad High Court