Chattisgarh High Court
Sangeeta Agrawal vs Enforcement Directorate on 4 October, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRCA No. 1162 of 2023
Sangeeta Agrawal, age 52 W/o. Babu Lal Agrawal, R/o. Samarth, Opp.
United Timbers, New Timber Market, Fafadih, Raipur, Chhattisgarh.
---- Applicant
Versus
Enforcement Directorate through I.O., Enforcement Directorate
(FEMA/PMLA), Raipur.
---- Respondent
For Applicant : Mr. Krishna Tandon,
Advocate.
For Respondent : Dr. S.K. Pandey, Advocate.
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
04.10.2023
1. The present first bail application under Section 438 of the Code of Criminal Procedure, 1973 has been filed in relation to Crime No.ECIR/01/NGR/2011 dated 10.01.2011 renumbered as ECIR/RPSZO/05/2013 and its subsequent addendum dated 10.02.2020, registered at Police Station - Enforcement Directorate, Sub-Zonal Office-Nagpur for the commission of an offence punishable under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (for short 'the PMLA Act').
2. The brief facts of the case are that the Income Tax sleuths conducted a search at the premises of Babulal Agrawal on 04.02.2010, which resulted in the seizure of cash amount of Rs.68.10 lakhs and jewellery worth Rs.70.20 lakhs and other assets worth Rs.12.50 crores. A search was also conducted at the premises of co-accused Sunil Kumar Agrawal, C.A. of Babulal 2 Agrawal where 230 bank passbooks were recovered. It is further alleged that Sunil Kumar Agrawal opened a bank account in the name of the villagers by using documents given by the villagers and forging their signatures. The money deposited in such bank accounts was channelized as share capital in M/s. Prime Ispat Limited through shell companies.
3. The role of the present applicant, who is the wife of Babulal Agrawal, is that she was an employee of M/s. Prime Ispat Limited, Raipur during the period 2007-2010. The brothers of Babulal Agrawal, namely Ashok Kumar Agrawal and Pawan Kumar Agrawal were the Directors of that company and the present applicant was appointed as Senior Manager (Finance) in M/s. Prime Ispat Limited, Raipur. According to the terms and conditions of her appointment order, her work was to maintain the cash of the company and to look after the day-to-day accounts which established that she was appointed in the company, wherein the laundered money of Babulal Agrawal was integrated. It is further stated that Babulal Agrawal appeared on behalf of his wife and his statement was recorded under Section 50 of the PMLA Act where he accepted that Smt. Sangeeta Agrawal was an employee in the year 2007 to 2010. It is alleged that Babulal Agrawal gave replies to the questions about the applicant's role and responsibility in the company. ECIR/01/NGR/2011 was registered on 10.01.2011 whereas FIR No. 6 of 2010 was registered on 19.02.2010 by the Economic Offence Wing, Raipur. ECIR was also registered against Vimal Agrawal, Vinod Agrawal, Babulal Agrawal, Pawan Agrawal and Ashok Kumar Agrawal in relation to the same search and 3 seizure.
4. Learned counsel for the applicant would submit that according to the proviso appended to Section 45 of the PMLA Act, the applicant being a lady and suffering from various ailments is entitled to the grant of anticipatory bail. He would further submit that in the matter of Satender Kumar Antil vs. Central Bureau of Investigation and Another, reported in 2022 (10) SCC 51, the Hon'ble Supreme Court in paragraph 43 has held that in a case where the prosecution does not require custody of the accused, there is no need for arrest when a case is sent to the magistrate under Section 170 of the Code. It is also observed that there is no need for filing a bail application as the case is merely forwarded to the court for the framing of charges and issuance of process for trial. He would further contend that in the present case, though the FIR was registered on 19.2.2010, the applicant was never directed to appear before the investigating agency and the same is evident from the notice dated 05.10.2020 which clearly says that in view of the medical condition as already intimated vide reply dated 13.9.2020 against the earlier summons, the applicant was permitted to represent through authorized person. He would also contend that during these long 11 years, the applicant was never directed to appear before the investigating agency, therefore at this stage, it would not be appropriate to direct her to surrender. He would further submit that in the matter of Satender Kumar Antil (supra), the Hon'ble Supreme Court categorized the offences into four categories i.e. A, B, C & D. Category C deals with the offences punishable under Special Act containing stringent 4 provisions for bail such as PMLA, NDPS etc. He would submit that the applicant being a woman, her case should be considered in light of the provisions of Section 437 of Cr.P.C. It is further argued that in the matter of Satender Kumar Antil (supra), the Hon'ble Supreme Court has held that the law enunciated would equally apply in anticipatory bail cases. He would also argue that the applicant has undergone kidney transplantation in the year 1999 and angioplasty in the year 2012. She is also suffering from accelerated hypertension, depression and anxiety. She is on lifelong immuno-suppressive and other supportive drugs and a certificate in this regard has been issued by the medical officer on 17.08.2023. Some medical prescriptions have been filed by the applicant to substantiate the contention. He would further argue that one more ECIR was registered against other co-accused persons. The anticipatory bail of those persons was rejected by the learned Sessions Court and thereafter, by this Court. Ultimately, the Hon'ble Supreme Court in SLP (Cr.) No.2106 of 2022 was kind enough to grant anticipatory bail to Pawan Kumar Agrawal and Ashok Kumar Agrawal. He would further submit that in pursuance of the order passed by the Hon'ble Supreme Court, the accused persons, namely Vimal Agrawal and Vinod Agrawal have been granted anticipatory bail by this Court in MCRCA No. 1455 of 2021 vide order dated 09.02.2023. He would lastly contend that though different ECIRs were registered by the respondent, the sum and substance of the allegations are similar and thus, he would pray for grant of anticipatory bail to the applicant.
5. On the other hand, learned counsel for the respondent would 5 oppose the submissions made by counsel for the applicant. He would submit that the present applicant is the wife of the main accused Babulal Agrawal and she was an employee of M/s. Prime Ispat Limited from the year 2007 to 2010. The applicant was appointed as Senior Manager of Finance in M/s. Prime Ispat Limited and she had to maintain the cash of the company and look after the day-to-day accounts. He would further submit that according to the law laid down by the Hon'ble Supreme Court in the matter of Satender Kumar Antil (supra), the accused should cooperate in the investigation and a person who has not been arrested may take the benefit of Satender Kumar Antil judgment. He would also contend that in the present case, the applicant is not cooperating with the investigating agency and summons was also issued to her. He would further argue that the applicant has to satisfy the twin conditions of Section 45 of the PMLA Act. His next contention is that Economic Offences constitute a separate class and anticipatory bail should not ordinarily be granted in such offences.
He has placed reliance on the judgment passed by the Hon'ble Supreme Court in the matter of Y.S. Jagan Mohan Reddy vs. CBI, reported in (2013) 7 SCC 439 and the judgment passed by the High Court of Allahabad in the matter of Pankaj Grover vs. ED, Criminal Misc. Anticipatory Bail Application under Section 438 Cr.P.C. No. 7661 of 2020. He has placed reliance also on the judgment of the Hon'ble Supreme Court in the matter of the Directorate of Enforcement vs. M. Gopal Reddy and Another, reported in 2023 LiveLaw (SC) 138 wherein it is held that in the 6 case of Money Laundering offences, the preconditions of Section 45 of PMLA Act have to be satisfied for anticipatory bail.
6. I have heard learned counsel appearing for the parties, considered their rival submissions made herein above and perused the documents present on the record.
7. From a perusal of the documents, it appears that a search was conducted by the Income-Tax Department on 04.02.2010 and 05.02.2010 in the premises of Babulal Agrawal, Sunil Kumar Agrawal (CA) and other relatives and 230 passbooks of different persons were recovered. On 19.02.2010, the Economic Offence Wing, Raipur registered an FIR bearing No. 6 of 2010 under Section 13(e) and 13(2) of the Prevention of Corruption Act, 1988 and Section 3 of the Benami Transaction (Prohibition) Act, 1988. On 10.01.2011, ECIR/01/NGR/2011 was registered under Sections 3 & 4 of the PMLA Act 2002. On 14.05.2018, the main accused - Babulal Agrawal was exonerated on identical allegations by the Adjudicating Authority, PMLA on the ground that no case of money laundering had been made out against him based on the allegations imputed in the prosecution complaint filed by the investigating agency. The order of the Adjudicating Authority has been challenged before the Appellate Authority. On 10.02.2020, the respondent registered an FIR against Babulal Agrawal in the addendum ECIR. The summons was issued to the applicant and she was permitted to appear through the authorized representative. On 04.01.2021 i.e. after 10 years, the respondent filed a prosecution complaint arraying the applicant as accused. The main accused, namely Babulal Agrawal has been granted 7 regular bail in MCRC No. 78 of 2021 vide order dated 10.02.2021 on the ground that he has been exonerated of the allegations by the Adjudicating Authority, PMLA. The order dated 10.02.2021 was challenged before the Hon'ble Supreme Court by filing SLP (Crl.) No. 5661 of 2021 by the respondent and the same was also dismissed vide order dated 16.11.2021.
8. Section 45 of the PMLA Act says as under:
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 [under this Act] shall be released on bail or on his own bond unless--]
(i) the Public Prosecutor has been given a 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-accused 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.
[(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 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 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.
[Explanation.--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 8 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 conditions under section 19 and subject to the conditions enshrined under this section.]"
9. The Hon'ble Supreme Court in the matter of Siddharth vs. State of U.P. reported in 2021 SCC OnLine SC 615 in paragraphs 9 & 12 held as under:
"9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 of the Cr.P.C. that it does not impose an obligation on the Officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the Investigating Officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 of the Cr.P.C. does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the Investigating Officer before the court while filing the charge-sheet.
12. In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven 4 Joginder Kumar v. State of UP & Ors. (1994) 4 SCC 260 years of registration of the FIR we can think of no reason why at this stage he must be arrested before the chargesheet is taken on record. We may note that learned counsel for the appellant has already stated before us that on summons being issued the appellant will put the appearance before the trial court."
The Hon'ble Supreme Court in the matter of Y.S. Jagan Mohan Reddy (supra) in para 34 & 35 of the report held as under:
"34) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs 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 9 accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."
The Hon'ble Apex Court in the matter of M. Gopal Reddy (supra) in paragraph 5 of the report observed thus:-
"5. We have heard learned counsel appearing on behalf of the respective parties at length. At the outset, it is required to be noted that respondent No. 1 is apprehending his arrest in connection with the complaint/case by the ED for the offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act. An enquiry/investigation is going on against respondent No. 1 for the scheduled offence in connection with FIR No. 12/2019. Once the enquiry/investigation against respondent No. 1 is going on for the offence under the Act, 2002, the rigour of Section 45 of the Act, 2002 would be attracted. Section 45 of the Act, 2002 reads as under: "45. Offences to be cognizable and nonbailable.-- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 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 accused of moneylaundering 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.
[(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 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 Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 5.1 By the impugned judgment and order, while granting anticipatory bail the High Court has observed that the provisions of Section 45 of the Act, 2002 shall not be applicable with respect to the anticipatory bail applications/proceedings under 10 Section 438 Cr.PC. For which the High Court has relied upon the decision of this Court in the case of Nikesh Tarachand Shah (supra). In the case of Dr. V.C. Mohan (supra), this Court has specifically observed and held that it is the wrong understanding that in the case of Nikesh Tarachand Shah (supra) this Court has held that the rigour of Section 45 of the Act, 2002 shall not be applicable to the application under Section 438 Cr. PC. In the case of Dr. V.C. Mohan (supra) in which the decision of this Court in the case of Nikesh Tarachand Shah (supra) was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 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 Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered - although the application is under Section 438 Cr.PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr. V.C. Mohan (supra) and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah (supra). Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable."
In Pankaj Grover (supra) the High Court of Allahabad in para 38, 40 & 42 held as under:
"38. Change in society has caused complete change in nature, cause, mode, rate and impact of crime on individual member of the society and society at large. Further, all and every stereotype of crime and criminals have completely changed and it is causing greater problem to criminal justice. Previously crimes were committed by un-socialised or mal-socialised or improperly socialised persons for whom all traditional criminologists have been of opinion that they belong to lower class, such criminals were committing crime in unorganised manner without proper planning or completely in un-planned manner by using crude modus operandi leaving clues on crime scene, traditional evidences were available particularly eye witnesses, crimes were committed to satisfy need and necessity or enmity or jealousy or lust. To deal such crimes simple and general measures of criminal justice was efficient. Simple investigating agency and its investigation procedure; traditional prosecution and prosecution measures were effective, traditional sentencing and its infliction was sufficient to tackle problem of traditional criminality. Crimes are now committed by influential persons belonging to upper class in organised manner after well planning by use of modern gadgets in course of performance of their official, professional, business activities in which they have expertise. Criminal acts committed by professionals, businessmen and public servants, it is very difficult to identify whether sober and civilised activity was committed or criminal act was committed. Such criminals have no criminal self image, further by societal members there is no labelling which affect seriously pursuits to cope with crime and criminality. Economic offenders are only concerned with their personal gain even at the cost of irreparable and serious loss to society which provided socialization and made him a human being, 11 provided status and position, provided respect and reputation, provided stature and means.
40. To gain more and more profit, to become rich quick such criminal even has no problem to cause problem for the whole society, affect safety and security of life of societal members, misappropriation of public exchequer and ultimately affect completely wellbeing of society at large. In the way to accumulate money and to get physical commodities, life, property and well-being of common persons have no value. Criminal acts committed by such persons are creating a serious challenge before criminal justice system; It is difficult to identify whether crime was committed, when it is identified that crime was committed, it is difficult to find out clues and thereby evidences; when evidences are available, nature of evidences is completely different as not possible to be collected by simple investigating, presented by prosecution agency and ultimately to convict and sentence; when sentenced, simple sentence is not effective to deal with such modern criminals and their criminality. A criminal of such modern criminality are respected and influential persons with position, status, standing and means thereby they are always in situation to influence proceeding in investigation and prosecution, tamper with the evidences and pressurise witnesses.
42. In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of abscondance not within country but beyond country is more probable. Usually socio-economic offenders abscond to some other country and after that it becomes difficult to bring them back and complete the criminal proceeding against them. Further, their monetary sound condition particularly proceed of crime obtained not by honest working but by deceiving others causes more prone situation for influencing witnesses and other evidences. Furthermore, status and position of offender provides opportunity to influence investigation and prosecution."
The Hon'ble Apex Court in the matter of Satender Kumar Antil (supra) in paras 43, 90, 100.5 & 100.6 held as under:-
"43.The scope and ambit of Section 170 has already been dealt with by this Court in Siddharth v. State of U.P., (2021) 1 SCC 676. This is a power which is to be exercised by the court after the completion of the investigation by the agency concerned. Therefore, this is a procedural compliance from the point of view of the court alone, and thus the investigating agency has got a limited role to play. In a case where the prosecution does not require custody of the accused, there is no need for an arrest when a case is sent to the magistrate under Section 170 of the Code. There is not even a need for filing a bail application, as the accused is merely forwarded to the court for the framing of charges and issuance of process for trial. If the court is of the view that there is no need for any remand, then the court can fall back upon Section 88 of the Code and complete the formalities required to secure the presence of the accused for the commencement of the trial. Of course, there may be a situation where a remand may be required, it is only in such cases that the accused will have to be heard. Therefore, in such a situation, an opportunity will have to be given to the accused persons, if the court is of the 12 prima facie view that the remand would be required. We make it clear that we have not said anything on the cases in which the accused persons are already in custody, for which, the bail application has to be decided on its own merits.
ECONOMIC OFFENSES (CATEGORY D)
90.What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in the case of P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field:-
100.5. There need not be any insistence of a bail application while considering the application under Section 88, 170, 204 and 209 of the Code.
100.6. There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra)."
The Hon'ble Apex Court in the matter of Satender Kumar Antil vs. Central Bureau of Investigation and Another, reported in (2021) 10 SCC 773 in para 5 of the report observed thus:-
"5. The trial Courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperated in the investigation nor appeared before the Investigating Officers, nor answered summons when the Court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with."
The Hon'ble Apex Court in the matter of Rana Kapoor vs. Directorate of Enforcement, reported in 2022 SCC OnLine Del 4065 in paras 10, 11 & 12 held as under:-
"10. The applicant is implicated in PMLA which was enacted to prevent money-laundering and to provide for confiscation of property derived from, or involved in, money-laundering and for matters connected therewith or incidental thereto. Section 45 provides that offences punishable under PMLA are cognizable and non-bailable also provides 13 stringent conditions in grant of bail. It reads as under-
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 under this Act shall be released on bail or on his own bond unless--
(i) The Public Prosecutor has been given a 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-accused of money-laundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs.
10.1 As per Satinder Kumar Antil, Offences punishable under Special Acts containing stringent provisions for bail like NDPS (S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc. fall in category C. The bail applications for offences falling in Signature Not Verified Digitally Signed By:JITENDRA Signing Date:28.11.2022 BAIL APPLN.
559/2022 RANA KAPOOR V DIRECTORATE OF ENFORCEMENT Page 26 11:59:21 Neutral Citation Number: 2022/DHC/005170 Category C are required to be decided on merit besides consideration of additional condition of compliance of the provisions of Bail under NDPS S.37, 45 PMLA, 212(6) Companies Act 43d(5) of UAPA, POSCO etc.
11. The applicant was not implicated in FIR bearing RC No.2232021A0005 registered by CBI. The applicant was implicated in present criminal complaint filed by the respondent/ED and arrayed as accused no 2. The investigating officer consciously did not arrest the applicant. The applicant participated in investigation as his three statements under section 50 PMLA were recorded. The respondent also did not allege that the applicant neither participated nor cooperated in investigation. The concerned Special Court after taking cognizance on present criminal complaint ordered for summoning of the accused persons including the applicant. The investigating officer even after filing of present complaint did not apply for custody of the applicant. The co-accused Gautam Thapar was arrested consciously by the investigating officer during investigation and was denied bail by the Special Court and High Court and as such the applicant is standing on different footing from co-accused Gautam Thapar. The applicant was taken into custody due to dismissal of bail application vide order dated 20.01.2022 passed by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act)(CBI)-02 Rouse Avenue District Court, New Delhi. The applicant primarily not seeking bail on merit but on basis of observation made by the Supreme Court in para no 65 of Satinder Kumar Antil decision and as such applicant is not required to pass the test of section 45 PMLA. The conditions as per section 45 PMLA would be applicable, had the applicant filed an application either under section 439 of the Code after arrest during investigation or under section 438 of the Code apprehending his arrest during investigation. As mentioned in present criminal complaint filed by the respondent, the applicant was not arrested during investigation by the investigating agency. There is legal force in argument advanced by the learned Senior Counsel of the applicant that applicant is entitled to bail in view of observations/legal proposition as laid down by the Supreme Court in Satinder Kumar Antil. It is not mandate of section 170 of the Code that if the accused is not taken into custody or arrested during investigation can be arrested or taken into custody after appearance in 14 court post summoning order particularly when neither investigation agency nor prosecution agency sought arrest of accused.
12. The arguments advanced by the learned Special Counsel for the respondent that the applicant has misinterpreted para no 65 of Satinder Kumar Antil is misplaced. There is no force in argument advanced by the learned Special Counsel for the respondent that the applicant before grant of bail required to pass test of 45 of PMLA. The position would have been different, had the applicant arrested during investigation. The investigating agency as mentioned hereinabove consciously preferred not to arrest the applicant during investigation or post filing of charge sheet. The arguments advanced and case law relied on by the Special Counsel for the respondent are considered in right perspective to the given facts and circumstances but they do not provide much legal help to the respondent in opposing present bail application."
10. It is not in dispute that the FIR was registered on 19.02.2010 whereas the respondent filed a complaint arraying the applicant as accused in ECIR on 04.01.2021 i.e. after 10 years. From the summons issued to the applicant, it is quite vivid that she was permitted to appear through an authorized person and it cannot be said that she did not cooperate in the investigation. According to the proviso appended to Section 45 of the PMLA Act, a woman suffering from certain ailments may be granted anticipatory bail. The decision cited by learned counsel for the respondent states the twin conditions of Section 45 of the PMLA Act are to be satisfied but at the same time, the judgment passed by the Hon'ble Supreme Court in the matter of Satender Kumar Antil (supra) cannot be lost sight of as the applicant is a lady suffering from various ailments and she cooperated in the investigation of the matter and other co-accused persons against whom similar allegations were made, have already been granted anticipatory bail by the Hon'ble Supreme Court and by this Court, therefore, in opinion of this Court, the present is a fit case to extend the benefit under Section 438 of Cr.P.C. to the applicant.
15
11. Accordingly, the anticipatory bail application is allowed and it is directed that in the event of arrest of the applicant in connection with the aforesaid offence, she shall be released on anticipatory bail on her furnishing a personal bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one surety in the like sum to the satisfaction of the arresting officer and she shall abide by the following conditions:
(i) she 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 her from disclosing such fact to the Court,
(ii) she shall not act in any manner which will be prejudicial to fair and expeditious trial, and
(iii) she shall appear before the trial Court on each and every date given to her by the said Court till disposal of the trial,
(iv) she shall not involve herself in any offence of a similar nature in future.
The observations made in the course of this order are only for considering the case of the applicant on the application for grant of anticipatory bail. The concerned trial Court shall not be influenced or bound by any observations made hereinabove. Sd/-
(Rakesh Mohan Pandey) Judge Nimmi