Calcutta High Court (Appellete Side)
Amit Banerjee vs Manoj Kumar on 17 April, 2017
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17.04.17
Sl. No.1
Akd & PA
to J. Bagchi, J.
[Bail Granted] C. R. M. 1665 of 2017 In Re: An application for bail under Section 439 of the Code of Criminal Procedure filed on 01.03.2017 in connection with M.L. Case No. 3/2015 arising out of ECIR No. KLZO/02/2014 under Section 4 of the Prevention of Money-Laundering Act, 2002.
And AMIT BANERJEE ... PETITIONER VS.
MANOJ KUMAR ... OPPOSITE PARTY Mr. Milon Mukherjee, Mr. Suman De, Mr. Rahul Ganguly ...for the petitioner Mr. Ranjan Kumar Roy ...for the opposite party After lapse of more than one year from the date of rejection of his earlier prayer for bail, the petitioner has renewed his prayer for grant of bail in connection with M.L. Case No. 3/2015 pending before the learned Special Judge, CBI Court No.1, Kolkata under Section 3 read with Section 4 of the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as the 'PMLA').
Mr. Milon Mukherjee, learned senior advocate appearing for the petitioner submits that the petitioner is not an accused of any scheduled offence and is facing prosecution only in respect of offences punishable under Section 3 read with Section 4 of the PMLA. In view of such fact, it is submitted that restriction on the discretion of the Court to grant bail to the petitioner under Section 45 of the PMLA does not apply. He also submits that since the rejection of the prayer for bail of the petitioner, 2 there has not been any progress in the matter before the trial court and copies of the documents relied upon by the prosecution have not yet been supplied. He accordingly, prays for bail in view of the fact that his client is in custody for 667 days and there is hardly any possibility of conclusion of trial in the near future. He also relies on various authorities in support of his contentions:-
1) 2005 SCC (Cri) 1057 [Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra & Anr.]
2) Paresh Vitthal Asarpota @ Bhatia vs. State of Gujarat & Ors. [Gujarat High Court] Date of Judgement : 3rd February, 2016
3) Gurucharan Singh vs. Union of India & Ors. [Delhi High Court] Date of Judgement : 27th April, 2016
4) Rakesh Manekchand Kothari vs. Union of India & Anr. [Gujarat High Court] Date of Judgement : 3rd August, 2015
5) M/s. Obulapuram Mining Co. Pvt. Ltd. vs. Directorate of Enforcement & Ors. [Karnataka High Court] Date of Judgement : 13th March, 2017 Mr. Ranjan Kumar Roy, learned advocate appearing for the opposite party-Department submits that Section 45 of the PMLA Act, 2002 shall apply with full force in the instant case. He submits that Section 3 of the PMLA is couched in wide expression and includes offenders who are conspirators and/or abettors of the persons accused of the scheduled offence and in the light of such fact it would be incorrect to hold that Section 45 of the Act does not apply against the petitioner. He also submits that pursuant to the direction of this Court on 7th March, 2017 documents relied upon by the prosecution have been filed before the Special Court but the accused persons have refused to take copies thereof without inspection of the said documents.
Accordingly, he prays for rejection of the prayer for bail. 3
Petitioner was arrested in the instant case on 19th June, 2015. Prior to his arrest, a complaint was filed under Section 3 read with Section 4 of PMLA had been filed before the Special Court wherein he had not been arrayed as an accused person. Subsequently, a supplementary complaint was filed in August, 2015 implicating the petitioner. The petitioner is being prosecuted in the instant case along with eight other accused persons. Although some of the co-accused persons are being prosecuted in respect of various scheduled offences like cheating (Section 420 IPC) and Section 24 of the SEBI Act, petitioner has not been accused of any scheduled offence and is being prosecuted under Section 3 read with Section 4 of the PMLA Act alone.
In this backdrop, I am called upon to decide as to whether Section 45 of the PMLA Act which restricts the discretion of the Court to grant bail to an accused applies to the petitioner who is accused of an offence under PMLA but is not accused of any scheduled offence.
Section 45 of the PMLA reads as follows:-
" S.45. 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 punishable for a term of imprisonment of more than three years under Part A of the Schedule 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, 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 -4
(i) the Director; or
(ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.
[(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 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 [* * *] of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
A plain reading of the said provision shows that notwithstanding the provisions of the Code of Criminal Procedure a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule shall be released on bail only if (i) Public Prosecutor is given an opportunity to oppose such prayer for bail; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds to believe that he is not guilty of such offence and is not likely to commit any offence while on bail. Such restriction, however, is subject to exception when the accused is below sixteen years or is a woman or is sick or infirm.
Section 2(y) of PMLA defines a scheduled offence. Section 2(y) reads as follows :-
" S.2(y). "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 thirty
lakh rupees or more; or
(iii) the offences specified under Part C
of the Schedule;"
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Part A of the Schedule to the Act, inter alia, enumerates various offences under the Indian Penal Code or any other special law referred to in the said schedule. No doubt, the Schedule includes Section 420 of the Indian Penal Code as well as Section 24 of the SEBI Act. However, the petitioner is admittedly not accused of such offences but has been implicated in the instant prosecution for commission of offence punishable under Section 3 read with Section 4 of PMLA only. Hence, it cannot be said that he is a person accused of an offence enumerated under Part A of the Schedule of the Act which is punishable for a term of imprisonment which is more than 3 years.
Faced with such proposition, learned advocate for the opposite party-Department argues that as the penal ambit of Section 3 of PMLA includes every person who has directly or indirectly indulged or assisted any party for concealing, possession, acquiring the proceeds of crime or using, projecting or claiming such proceeds of crime as untainted property, it is to be inferred that a person accused under Section 3 of the Act would by natural corollary be an abettor of a scheduled offence as defined under Section 2(y) of PMLA. It is true that in a given case where an accused who participates in the process of assisting another person in the concealment, possession or acquisition of proceeds of crime or using, projecting or claiming such proceeds as untainted property may also be a conspirator or abettor of a scheduled offence but such involvement must be demonstrated from the factual matrix of each case and cannot be ipso facto inferred from the implication of the said person for commission of offence under Section 3/4 of PMLA.6
Admittedly, the petitioner had joined the accused only after the deposits had been invited and received from the public and, therefore, by no stretch of imagination it can be said that he had played a role in the matter of inducing members of the public to make such investments in violation of the directives issued by the SEBI in that regard. No doubt, there are materials on record to show that subsequently the petitioner had allegedly played a role in the concealment and/or secreting of the proceeds of crime and/or had held out assurances to the members of the public that their deposits would be refunded. However, such acts on the part of the petitioner after the commission of the scheduled offences, though may prima facie implicate him in commission of offences under Section 3 read with Section 4 of the PMLA Act, do not establish his involvement in the commission of scheduled offences which had already been committed prior to his joining in the service of the accused company.
Moreover, the prosecution has also not made any prayer till date for implicating the petitioner as a conspirator and/or abettor in the criminal proceeding pending against other accused persons in respect of the scheduled offences.
In Paresh Vitthal Asarpota @ Bhatia vs. State of Gujarat (Supra) as well as in Rakesh Manekchand Kothari vs. Union of India (Supra), the Gujarat High Court held that Section 45 of the PMLA Act shall not apply to a person who has not been accused of an offence under Part A of the Schedule of the said Act. Similar view has been taken by a Single Judge of the Delhi High Court in the case of Gurucharan Singh vs. Union of India (Supra).7
In view of the aforesaid discussion, I hold that Section 45 of the PMLA Act shall not restrict the discretion of the Court while considering the prayer for bail of the petitioner in the instant case as he is not accused of commission of offence enumerated in Part-A of the schedule of PMLA which is punishable for a term of imprisonment more than 3 years. It is true that in the earlier order dated 10th March, 2016 while rejecting his prayer for bail I had made reference to Section 45 of PMLA and also to the factum of rejection of bail of a co-accused namely, Goutam Kundu by the Apex Court. However, the issue as to inapplicability of Section 45 of PMLA to the petitioner (unlike that of co- accused Goutam Kundu) had neither been argued before me on such occasion nor decided in the said order.
It is trite law that a judgement is not an authority for the proposition which is neither argued not decided. [see Mittal Engineering Works (P) Ltd. vs. CCE, (1997) 1 SCC 203 (para-8)]. That apart, principle of constructive res judicata also does not apply in matters of preventive detention. Moreover, a party cannot be precluded on the principle of res judicata from agitating a pure question of law touching the jurisdiction of the Court in a subsequent proceeding [see Mathure Prasad vs. Dossbai, AIR 1971 SC 2355 (para-9 & 10)]. The issue raised before me being a pure question of law relating to the jurisdiction of the Court in the matter of grant of bail, which had not been agitated in the earlier application for bail that stood rejected, such rejection would, therefore, not operate as a bar for this Court to consider the said question of law and its applicability in the matter of grant of bail to the petitioner.
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Coming to the facts of the case I have perused the affidavit filed on behalf of the opposite party-Department pursuant to the direction given by this Court on 7th March, 2017. Since the rejection of bail by this Court on 10th March, 2016, there has not been any progress in the matter particularly on the score that other co-accused persons who are implicated in various criminal cases in different States are being produced in such Courts pursuant to production warrants issued by the said courts in seisin of the said criminal proceedings. As a consequence, the petitioner has languished in custody and till date copies of documents relied upon by the prosecution has not yet been supplied to him.
That apart, petitioner is accused of offences involving term imprisonment upto seven years. He has already been in custody for about two years and charges have not been framed in the instant case as yet. He is not an accused of a scheduled offence under Section 2(y) of PMLA unlike other co-accused persons in this case and therefore, the discretion in the matter of grant of bail to him is also not fettered by restrictions under Section 45 of PMLA.
In view of such facts, I am inclined to grant bail to the petitioner in this case.
Accordingly, I direct that petitioner, namely Amit Banerjee, be released on bail upon furnishing a bond of Rs.5,00,000/- (Rupees Five lacs only), with two cash sureties of Rs.2,50,000/- each, with an additional surety of Rs.5,00,000/- (Rupees Five lacs only) which shall be furnished by one of the family members of the petitioner, to the satisfaction of the learned trial court, subject to condition that the said petitioner shall appear before the trial court on every day of hearing until 9 further orders and shall not leave the jurisdiction of the State of West Bengal without the leave of the trial court.
In the event he fails to appear before the trial court without justifiable cause, the trial court shall be at liberty to cancel his order of bail automatically without reference to this court.
Needless to mention that the observations made on the merits of the case are for the purpose of disposal of this application and shall not have any bearing in the subsequent stage of the proceeding which shall be conducted independently and in accordance with law.
The aforesaid factual matrix compels me to observe that investigation/prosecution in Ponzi cases involving number of accused persons which are being conducted by various agencies namely, CBI, ED, SEBI and are progressing at a snail's pace. These agencies are operating independent of one another and do not have any synergy amongst themselves. Criminal cases have been filed these agencies against the same batch of accused persons in various courts situated in different states of the country. Even in some of these cases further investigation is in progress. The accused persons in these prosecutions overlap and are required to be produced before various Courts in different States by these agencies causing undue delay and hindrance in progress of trial of such cases. In this backdrop, it is necessary that these agencies operate under a nodal body and formulate a common strategy in conducting prosecution of offences under various laws which were committed in the course of same/similar transaction and take necessary measures in accordance with law including transfer/clubbing of such prosecutions pending in various Courts in different States to one or more Courts at a single place so as to avoid prolixity and/or 10 inconvenience and ensure swift completion of such prosecutions at an early date.
It is a matter of deep concern that although investigation in Ponzi cases had been taken over by CBI in 2014 pursuant to the direction of the Apex Court in Subrata Chattoraj vs. UOI, (2014) 8 SCC 768, trial in none of such cases or allied cases under special Laws like PMLA have commenced in spite of lapse of more than 3 years. Right to speedy trial is not only a fundamental right of the accused particularly when he is in custody but also the plaintive cry of innumerable victims who have lost their life annuities due to the predatory and dishonest financial practices allegedly perpetrated through chit fund companies resulting in substantial loss of their livelihood and assets. It is, therefore, desired that the agencies entrusted with the investigation/prosecution of such cases take proper steps for expeditious and prompt conclusion of the said proceedings so as to instill confidence in the minds of the unfortunate victims of financial genocide.
The application for bail, thus, stands allowed. Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon compliance of all formalities.
Department is directed to send a copy of this order to the Director, Central Bureau of Investigation (C.B.I.), Director, Enforcement Directorate (E.D) and Chairman, Securities and Exchange Board of India (S.E.B.I.) for necessary action.
(Joymalya Bagchi, J.)