Gujarat High Court
Pradeep Nirankarnath Sharma vs Dorectorate Of Enforcement & Anr on 13 April, 2015
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
R/CR.MA/4415/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL )
NO. 4415 of 2015
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PRADEEP NIRANKARNATH SHARMA ....Applicant Versus DORECTORATE OF ENFORCEMENT & ANR ....Respondents =============================================================== Appearance:
MR YOGESH LAKHANI, SENIOR ADVOCATE with MR RJ GOSWAMI, ADVOCATE for the Applicant MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL for the Respondent No. 1 MR L.B.DABHI, APP for the Respondent No. 2 =============================================================== CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 13/04/2015 CAV ORDER
1. This is an application for anticipatory bail.
2. The applicant is accused of having committed offence under Section 3 of the Prevention of Money Laundering Act, 2002 (for short 'PML Act'), punishable under Section 4 of the PML Act. The applicant had already moved the designated Court for this purpose by filing Criminal Misc. Application No.150 of 2015 which is rejected vide order dated 25.02.2015.Page 1 of 11
R/CR.MA/4415/2015 CAV ORDER
3. Heard learned advocates.
4.1 Mr.Yogesh Lakhani, learned senior advocate for the applicant has submitted that the applicant is being hounded by the State Authorities. It is submitted that, the very initiation of the proceeding in question is mala-fide exercise of powers on the part of the State Authorities. Learned advocate for the applicant has addressed this Court at length to contend as to how the action of the State lacks bona fide. Reference is made to the following offences registered against the applicant.
(1) CR.-I No.3 of 2010 registered with Rajkot Zone Police Station, State CID Crime for the offence punishable under Sections 7, 11, 13(1)(2) read with Section 13(2) of the Prevention of Corruption Act, 1988, (2) CR.-I No.9 of 2010 registered with State CID Crime Rajkot Zone Police Station for the offences punishable under Sections 217, 409, 465, 467, 468, 471 read with Section 120B of the Indian Penal Code.
(3) CR.-I No.6 of 2014 registered with Kutch (West) A.C.B. Police Station for the offences punishable under Sections 11, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 read with Section 465, 467, 471 and 114 of the Indian Penal Code.
Reference is also made to the orders of the Competent Page 2 of 11 R/CR.MA/4415/2015 CAV ORDER Court granting bail to the applicant in those cases, the net effect of which is that the applicant is not in Jail, at present. It is submitted that the State Authorities take up same set of facts for registering different offences with a view to see that the applicant remains in jail. Learned advocate for the applicant has also addressed the Court at length, on merits of the each transaction, which according to State is an illegality.
4.2 It is submitted that, the proceeding in question, invoking the provisions of the PML Act was already registered in the year 2012 against the applicant and it is now, that there is a move to arrest the applicant, and therefore the protection be granted. Learned advocate for the applicant has submitted that the powers under Section 438 of the Code of Criminal Procedure, 1973 is very wide. It is also submitted that, true it is that the provisions of Section 45 of the PML Act, need to be kept in view but the applicant does satisfy those parameters as well, in the present case and therefore this Court may record satisfaction as required under Section 45 of the PML Act and grant the protection, as prayed for. Reliance is placed on the following decisions to submit that, anticipatory bail be granted.
(1) Decision of the Hon'ble the Supreme Court of India in the case of Arnesh Kumar Vs. State of Bihar reported in (2014) 8 SCC 273.
(2) Decision of this Court in the case of Kottam Raju Vikram Rao Vs. State of Gujarat reported in 1977 GLR 107.
(3) Decision of this Court in the case of Solanki Ravibhai Dipubhai Versus State of Gujarat reported in 1992 (1) GLR 631.
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5. On the other hand, Mr.Devang Vyas, learned Assistant Solicitor General has vehemently opposed this application. It is submitted that the applicant is accused of having committed offence under Section 3 of the PML Act. It is submitted that, in the present case, there is ample material to hold that the applicant has committed the offence and in any case this is not the stage when the Court would record satisfaction as required under Section 45 of the PML Act. Learned ASG has taken this Court through the contents of two affidavits filed on behalf of the Department being (i) affidavit in reply dated 10.03.2015 and (ii) affidavit in reply dated 25.03.2015 in response to the rejoinder filed by the applicant. Learned ASG has also made available to this Court, the material gathered by the Investigating Agency against the present applicant, in the proceeding in question, which according to the Department, the applicant needs to be confronted with. It is submitted that the rigorous of Section 45 of the PML Act would apply with full force and there is material on record even to hold that the applicant is guilty of the offence charged with and in any case, this is not the case where at this stage, Court may record finding that there are reasonable ground to believe that the applicant is not guilty of the offence charged with. Reliance is also placed on the decision of the Division Bench of this Court in the case of Rakesh Manekchand Kothari Vs. Union of India recorded on Special Criminal Application No.4496 of 2014 dated 16.01.2015. It is submitted that, this application be dismissed.
6.1 Having heard learned advocates for the respective parties, the first aspect which needs to be addressed by this Page 4 of 11 R/CR.MA/4415/2015 CAV ORDER Court is, as to what are the parameters which need to be kept in view by this Court while considering this application. In this regard, reference needs to be made to Section 45 of the PML Act, 2002 which 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 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 Page 5 of 11 R/CR.MA/4415/2015 CAV ORDER 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, [1973 (2 of 1974], or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized, 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."
6.2 In view of the above provision, this Court need to arrive at the satisfaction that (i) there are reasonable grounds for believing that the applicant is not guilty of the offence, he is charged with, and further that (ii) he is not likely to commit any offence while on bail.
Page 6 of 11R/CR.MA/4415/2015 CAV ORDER 6.3 So far the second part i.e. 'likelihood of not committing any offence while on bail' is concerned, there is substantial force in the submission of learned senior advocate for the applicant that, 'the offence' needs to be understood as 'the offence under the PML Act' and not any other offence. So far this stipulation is concerned, the same would be meaningful, only if the (i) noted above is satisfied.
6.4 So far the first stipulation, that this Court need to arrive at the satisfaction that, there are reasonable grounds for believing that the applicant is not guilty of the offence he is charged with, is concerned, for that purpose (i) the material on record, and (ii) the material with the Investigating Agency which is made available to this Court for perusal, need to be considered. Having done so, it is recorded that, this Court is not in a position to record such satisfaction. It is further noted that, while doing so, it is kept in view that the word 'reasonable' needs to be understood and interpreted reasonably and not that acquittal needs to be recorded at this stage.
6.5 Since this Court is unable to record the first satisfaction as contemplated under Section 45(1)(ii) of the PML Act, it would be immaterial as to whether the applicant meets with the second requirement, as noted in para: 6.3 above. There is no dispute that, both the stipulations need to be met with and if any one is missing, it would not be permissible to release the applicant even on regular bail, while the present one is the case of anticipatory bail. At this juncture, reference is also required to be made to the decision of the Division Bench of this Court in the case of Rakesh Manekchand Kothari (supra).
Page 7 of 11R/CR.MA/4415/2015 CAV ORDER Relevant portion of Para : 10.12 and 10.13 thereof reads as under.
"10.12 A bare perusal of section 45 of the PML Act reveals that it is pertaining to offences to be cognizable and non-bailable and begins with non-obstinate clause "notwithstanding anything contained in the Code of Criminal Procedure, 1973" and mandates that no person accused of offence punishable for term of imprisonment for more than 3 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 opportunity to oppose the application for such release; and [ii] Where the Public Prosecutor opposes such application, the court has to satisfy about existence of reasonable grounds for believing that such accused person is not guilty of such offences and that he is not likely to commit such offences while on bail. The above two conditions are of course subject to two un- numbered provisos viz. that a person under the age of sixteen years or is a women or is sick or infirm, may be released on bail, if the special court so directs and further that Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by authorized person. Thus, when the situation Page 8 of 11 R/CR.MA/4415/2015 CAV ORDER arises about legality and validity of the complaint whether filed by the authorized officers / authorities or not can be considered at the time of taking cognizance of offence under PML Act by the Special Court. However, limitations of granting of bail specified in sub-section (1) is in addition to the limitation under the Code of Criminal Procedure, 1973 or any other law time being in force for grant of bail.
10.13 Thus, if the accused person succeeds in satisfying the designated court / special court for believing that reasonable grounds exist that the accused person is not guilty of such offence and while on bail he is not likely to commit any offence in spite of opposition by the public prosecutor, no restriction is put upon orders of Special Court to release such accused person on bail. -----"
(emphasis by this Court) 6.6 As noted in para:6.4 above, in the present case, this Court is not in a position to record satisfaction to the effect that, there are reasonable grounds for believing that the applicant is not guilty of the offence, he is charged with. In absence of such satisfaction, in view of above observations of the Division Bench of this Court, this application needs to be dismissed.
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7. The argument made on behalf of the applicant that he is already granted bail, on the same set of facts would not help him, for the reason that the present one is the case under the PML Act and the parameters are as noted above.
8. So far the allegation made by the applicant about the mala fide exercise of power by the State Authorities is concerned, it is noted that, the scope of this application is exercise of powers under Section 438 of the Code of Criminal Procedure, 1973 and the said power needs to be exercised keeping in view the parameters stipulated under Section 45 of the PML Act. The position with regard to the satisfaction of this Court under Section 45 of the PML Act, is as noted above. For this reason, that aspect is not gone into by this Court.
9. So far the authorities cited by learned senior advocate for the applicant are concerned, there can not be any dispute with regard to the proposition of law enunciated therein, however none of the authorities can be substitute to the satisfaction to be recorded by this Court as required under Section 45 of the PML Act, as noted above, and the said satisfaction needs to be recorded on the facts and it can not be a question of law.
10.1 For the reasons recorded above, this application is dismissed.
10.2 It is clarified that, the reasons recorded in this order is only for the limited purpose of deciding this application for anticipatory bail and any observation by this Court may not be construed as this Court having expressed any opinion on merits of the matter and the same shall not have any bearing Page 10 of 11 R/CR.MA/4415/2015 CAV ORDER on the subsequent application(s) that may be filed by the applicant or at the time of trial against the applicant. The Trial Court shall in no way be influenced by the observation of this Court in this order, since, as noted above, it is only for the purpose of deciding this application which is for anticipatory bail.
(PARESH UPADHYAY, J.)
11. After the pronouncement of this order, request is made on behalf of the applicant that the protection granted by this Court vide order dated 03.03.2015 be continued for some time. This request is opposed on behalf of the respondent Authorities. Considering the totality, it is ordered that, the ad- interim protection granted by this Court while issuing notice vide order dated 03.03.2015 shall continue for a period of two weeks from today i.e. up to 27.04.2015.
(PARESH UPADHYAY, J.) M O Bhati/146 Page 11 of 11