Bombay High Court
Directorate Of Enforcement vs State Of Maharashtra And Anr on 11 August, 2022
Author: Prakash D. Naik
Bench: Prakash D. Naik
Ethape 1 43-APL-737-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 737 OF 2022
Directorate Of Enforcement ...Applicant
Versus
State Of Maharashtra And Anr. ...Respondent
WITH
CRIMINAL APPLICATION NO. 738 OF 2022
Digitally signed
by
DNYANESHWAR
DNYANESHWAR ASHOK ETHAPE
ASHOK ETHAPE
Date:
Directorate Of Enforcement ...Applicant
2022.08.17
11:28:56 +0530
Versus
State Of Maharashtra And Anr. ...Respondent
....
Mr. H. S. Venegavkar Spcial P.P. for Applicant in both matters.
Mr. Abad Ponda Sr. Advocate with Mr. Manohar Ramsinghan
with Mr. Ashrat Diamondwala and Pradip Jain i/by
Diamondwala & co. for Respondent No.2 in Criminal
Application No. 737 of 2022.
Mr. Vijay Aggarwal a/w Rahul Agarwal a/w Yash Agarwal a/w
Vinay, Rachita Dhuru, Ashrat Digmandwala, Jasmin Purani i/by
Digmandwala & Co., Advocate for the respondent No.2 in
Criminal Application No. 738 of 2022.
Mr. Arfan Sait, APP for the Respondent - State.
....
CORAM : PRAKASH D. NAIK, J.
DATE : 11th AUGUST, 2022
PC :
1. Heard. Common issue is involved in both the applications.
2. The applications are preferred by Directorate of Enforcement, primarily challenging the order dated Ethape 2 43-APL-737-2022.doc 08.08.2022 passed by Special Judge under the PML Act, Sessions Court, Mumbai.
3. Preliminary objection has been urged by learned advocate representing respondent No.2 in both applications that considering the impugned order passed by Special Court under the PMLA Act and the prayers sought by applicant, these applications would pertain to the assignment of bail Court. Learned advocate Mr. Aggarwal and learned advocate Mr. Ponda submitted that order dated 08.08.2022 clearly indicate that the respondents are released forthwith on executing PR bonds of Rs.5,00,000/- and surety bonds of like amount. They are released on provisional cash security of Rs.5,00,000/- each alongwith PR bonds on condition to furnish surety within four weeks. Pursuant to order dated 08.08.2022, the respondents are actually released and they are present in the Court. The matter is due for hearing before the trial Court tomorrow. Mr. Agarval, learned advocate for respondent submitted that these proceedings were initially mentioned before the Court having assignment of bail and orally it was indicated by Court that the applicants herein shall pursue the proceeding pending before the trial Court. Thereafter, the Ethape 3 43-APL-737-2022.doc nomenclature and the contents of application was changed and the applications were circulated before this Court. This Court does not any assignment relating to bail. Mr. Ponda relied on order passed by this Court in Criminal Writ Petition No. 1925 of 2022 in the case of Mohammad Nawab Mohammad Islam Malik @ Nawab Malik Vs. the Directorate of Enforcement dated 10.06.2022 and relied on observations in paragraph No.5 of the said order wherein this Court had observed that the petitioner therein had sought release on bond which would indicate that the prayers are required to be sought before the Court having assignment of bail. It is submitted that the same principle is applicable in the present case. The provision relating to bond in section 445 of Cr.P.C. and Form Nos. 3 and Form No.4 provided in schedule under the Cr.P.C. were adverted to and submitted that the matters relates to bail bond. Section 45 of the PMLA also refers to release of accused. In the light of averments made in the applications and order passed by PMLA Court, what is under consideration is release of respondents on bond and therefore, this application does not pertain to the assignment of this Court. Reliance is also placed on the decision of the Supreme Court in the case of Moti Ram and Ors. Vs. State of Ethape 4 43-APL-737-2022.doc Madhya Pradesh AIR 1978 SC 1594.
4. Mr. Venegaokar, learned advocate for applicant herein submitted that the application preferred by the respondents before the Special Court under the PMLA Act was pertaining to release on account of illegal detention. The said application was purportedly preferred under Rule 4 of Criminal Manual. The Court has considered release of the respondents on account of illegal detention. Issue relating to the illegal detention has to be considered by Court having assignment dealing with the applications under Section 482 of Cr.P.C. The prayer clause in this application is also challenging the exhibit- 45 and 46. Mr. Venegaonkar further submitted that the matter was indeed mentioned before the Court having bail assignment under the impression that the respondents were released on bail. However, on perusal of the impugned order, it was revealed that they were released on bond on account of illegal detention. In the present application in paragraph (xiii) under the caption 'disclosure' it is stated that the impugned order dated 08.08.2022 was passed by learned Special Judge, PMLA on the same day in the evening. At about 5:00 pm. the operative part made available, however the Ethape 5 43-APL-737-2022.doc reasoned order was not available on the website on 08.08.2022 and also on 09.08.2022. As the impression was carried by the applicant that the accused have been released on condition of bail bond, it was thought that he is being released on temporary bail. For this reason, a praecipe was moved before the Vacation Shirestedar to place a matter before the Court having bail assignment. The Court informed the Shirestedar to direct the applicant to mention the matter on Wednesday i.e. 10.08.2022 at 10:30 am. Even when the matter was mentioned, the order was not made available to the mentioning counsel and the applicants. Therefore, precipe was moved for circulation before the Court having bail assignment. When the Court asked as to when the main matter is placed, it was submitted that the same matter was placed on same day i.e. 10.08.2022 for hearing of the application dated 08.08.2022 about illegal custody and non maintainability of PMLA proceedings. The Court was of the opinion that the said matter should be argued frst before the trial Court. Accordingly, the applicants went to the trial Court and showed willingness to argue the main matter in which further aforesaid application came to be made and the events narrated earlier took place. On perusal of the Ethape 6 43-APL-737-2022.doc impugned reasoned order, which was made available at 11:00 am to the Learned Special Public Prosecutor in the court, it was noted that release is not on bail but on the ground that the accused is in illegal custody. The trial Court have categorically held in the impugned order dated 08.08.2022 that the accused needs to be released as his custody is becoming illegal and the learned court has no power to extend the said remand. Upon perusal of the said observations the counsel for the applicants again mentioned the matter before the Court having bail assignment at 1:30 pm and pointed out that the matter was earlier wrongly mentioned before said Court under the belief that it pertains to order of bail them and it was also mentioned that the applicants are moving before appropriate Court.
5. In the light of submissions advanced by both sides, it is apparent that, the issue which is under consideration is whether this Court can hear these applications or they pertain to court having bail assignment. On perusal of the order dated 08.08.2022,it can be seen that the respondents herein, were directed to be released forthwith on executing PR bonds of Rs.5,00,000/- and surety bonds of like amount.
Ethape 7 43-APL-737-2022.doc Both the applicants be released provisional cash security of Rs.5,00,000/- each alongwith PR bonds on condition to furnish surety within four weeks. In the order passed by this Court on 10.06.2022 in the case of Nawab Malik (supra) in paragraph 5 it has been observed that considering the fact that prayer was sought for release on bond, the matter for release of the applicant therein would pertain to the court having assignment of bail. The release on bond efected in the present case is covered by provision of Section 445 of Cr.P.C. In the aforesaid it is observed that the release on bond is contemplated under section 439 of Cr.P.C. Learned counsel for the applicants contended that the order dated 10.06.2022 can be distinguished. In that case in the application before the Lower Court preferred by the said petitioner the title of the application was for bail and the prayer sought in that application was also for bail. Learned counsel for the respondent however urged that the counsel for petitioner rightly mentioned matter before the Court having assignment of bail and this Court shall not entertain this application for want of assignment of hearing such application. In any case, it is seen that the order which is under challenge in the present application relates to release of respondents from custody on PR bonds and surety. In Ethape 8 43-APL-737-2022.doc these circumstances, without making any observation on the merits of this case, I am of the opinion that this matter will have to be heard by the Court having assignment of bail. The petitioners are at liberty to move appropriate Court.
(PRAKASH D. NAIK, J.)