Allahabad High Court
Radhey Shyam Dubey [Third Bail] vs U.O.I. Thru. Joint Director,Director ... on 19 July, 2018
Bench: Ajai Lamba, Sanjay Harkauli
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 9 Case :- BAIL No. - 2324 of 2018 Applicant :- Radhey Shyam Dubey [Third Bail] Opposite Party :- U.O.I. Thru. Joint Director,Director Of Enforcement Lucknow Counsel for Applicant :- Purnendu Chakravarty, Anuuj Taandon Counsel for Opposite Party :- A.S.G.,Shiv P. Shukla Hon'ble Ajai Lamba,J.
Hon'ble Sanjay Harkauli,J.
(Oral)
1. This is a third application for bail before this Court. The petitioner is being tried for commission of offence in Complaint Case No.1 of 2015 arising out of ECIR/22/PMLA/LZO/2012 (Old No.ECIR/296/DZ/2009 AD (SK), Registered on 15.12.2009), under Section 3/4 of Prevention of Money Laundering Act, 2002 (for short PMLA) pending in the Court of Sessions Judge, Lucknow.
2. We have heard learned counsel for the applicant Shri Purnendu Chakravarty and Shri Shiv P. Shukla, learned counsel for Union of India.
We have gone through the relevant documents available in the file with the assistance of learned counsels for the parties.
3. Learned counsel for the petitioner has pointed out that CBI registered a First Information Report on 15.04.2009 in relation to transactions/incident ranging between 18.08.2004 to 24.05.2006. The CBI filed charge-sheet before the Court on 27.07.2010. The petitioner was taken in custody in the CBI case on 04.07.2011. The petitioner was granted bail by this Court vide order dated 24.02.2012.
It, therefore, transpires that the petitioner remained in custody in the CBI case for a period of 7 months 20 days.
4. Learned counsel for the petitioner has pointed out from the file that charge was framed by the CBI Court on 13.03.2012 for committing offences under Sections 120B, 420 Indian Penal Code, and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
5. It appears that the Enforcement Directorate initiated criminal proceedings/investigation vide Enforcement Case Information Report (for short 'ECIR/FIR') on 15.12.2009 in Delhi. Subsequently, a zone having been created in Lucknow, the case was renumbered as mentioned hereinabove.
Investigation was undertaken. The Enforcement Directorate did not take the petitioner in custody, rather it is the admitted case that the petitioner cooperated in investigation.
The co-accused of the petitioner entered a plea bargain on 16.11.2012 as is evident from Annexure - 5 appended with the bail application.
6. Gist of the allegations against the petitioner is that the petitioner while serving as a Bank Manager granted loan to various persons out of which the petitioner took commission and laundered the money/proceeds of crime in the sum of Rs.38,95,938/-, hence the proceedings under PMLA.
Having concluded investigation, complaint was filed by the Enforcement Directorate on 04.02.2015 placed on record as Annexure - 4 with the bail application.
7. The petitioner surrendered to the process of the Court on 15.01.2016 and applied for bail. The Enforcement Directorate opposed the bail. Be that as it may, the petitioner was taken in custody on 15.01.2016. The petitioner is in custody since then.
Application of the petitioner for bail was rejected vide order dated 09.03.2016 by the Trial Court.
The above noted sequence of events, and facts are admitted by learned counsel for the Union of India, the prosecuting agency.
It further appears that the petitioner applied for bail in this Court which was rejected vide order dated 22.08.2016 (Annexure - 1).
The petitioner again applied for bail in this Court second time which was also rejected vide order dated 12.07.2017 (Annexure - 2).
We are not referring to the contents of orders of the Court passed on the earlier applications for bail because the present bail application has been pressed on fresh grounds taken on the basis of changes in the provisions of Section 45 of PMLA which are germane to scope for grant of bail.
8. The petitioner approached the Hon'ble Supreme Court of India with similar plea. Hon'ble Supreme Court of India dismissed the application for bail vide order dated 05.10.2017, placed on record as Annexure - 3.
We have gone through the order passed by the Hon'ble Supreme Court of India. The following order was passed :-
"We have heard learned counsel for the petitioner and perused the impugned order dated 12.07.2017 passed by the Allahabad High Court.
We do not find any good ground to interfere in the said order.
Learned counsel for the petitioner states that four other accused had entered into plea bargaining and necessary relief has been granted to them.
We make it clear that it will be open for the petitioner to raise such a plea before the trial Court, if so advised, and the trial Court shall decide the same in accordance with law.
The Special Leave Petition is disposed of in the above terms.
Pending application stands disposed of."
9. The Hon'ble Supreme Court of India having given liberty to the petitioner to approach the trial Court for bail vide above extracted order, the petitioner apparently approached the trial Court for bail, taking the fresh grounds that had arisen.
10. Learned counsel for the petitioner has pointed out that portion of Section 45 of the PMLA that deals with the powers of the Court to grant bail has been struck down by Hon'ble Supreme Court of India.
Certain amendment has been carried to the provision, which would also change the complexion of the provision.
11. Before we proceed further, we would like to refer to the provisions of Section 45 of PMLA, as it existed before the changes were brought to the statutory provision.
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--
(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 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."
(emphasised by us) We have emphasised the portion of the provision that stands amended by virtue of case law or legislative amendment.
12. The Hon'ble Supreme Court of India vide judgment dated 23.11.2017 reported as (2018) 11 SCC 1 in case titled 'Nikesh Tarachand Shah Vs. Union of India & Ors., Writ Petition (Criminal) No.67 of 2017' struck down as ultra-vires, sub clauses (i) and (ii) of Sub Section (1) of Section 45 of the PMLA. (emphasised by us in the above extracted provision) The Hon'ble Supreme Court of India in Nikesh Tarachand Shah's case (Supra) held as follows in Para-54 :-
"Regard being had to the above, we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that the persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly."
(Emphasised by us)
13. Learned counsel for the parties have also drawn attention of the Court towards an amendment brought to the provisions of Section 45, further diluting the conditions for grant of bail. The Gazette of India, Extraordinary, published on 29th March, 2018 issued by Ministry of Law and Justice (Legislative Department)(relevant portion) so far as it amends Section 45 of the PMLA reads as under :
"208. In the Prevention of Money-laundering Act, 2002,-
x x x x
(e) in section 45, in sub-section (1), -
(i) for the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule", the words "under this Act" shall be substituted;
(ii) in the proviso, after the words "sick and infirm,", the words "or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees" shall be inserted;
x x x x (emphasised by us)
14. Provisions of Section 45 of PMLA, after incorporating the legislative amendment (supra), and after judgment rendered by the Hon'ble Supreme Court of India in Nikesh Tarachand Shah's case would read in the following terms :
"Section 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 -
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 alongwith 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 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.
[(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.
(emphasised by us)
15. In the considered opinion of the Court, the application for bail of the petitioner is required to be considered while keeping into account the above extracted provisions of Section 45 of the PMLA.
16. We are satisfied that on striking down the two conditions of bail by the Hon'ble Supreme Court of India, and by virtue of legislative amendment, as noted above, the petitioner became entitled to apply for bail afresh, in peculiar facts and circumstances of the case. Under the circumstances, we further hold that this third application before this Court for bail is maintainable on account of change of the statute position.
17. Provisions of Section 45 of the PMLA, as they exist on date, provide that a person may be released on bail or on his own bond if bail applicant 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.
Sub Section (2) of Section 45 of the PMLA further provides that limitation on granting of bail specified in Sub Section(1) is in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.
Inversely, the provisions of Section 45 of the PMLA provide that the persons not falling in the above noted categories would not be entitled to be released on bail.
18. Before we proceed to consider the plea for bail made by the petitioner, in context of the accusations against him and the facts and circumstances surrounding the accusations, we would like to refer to a different portion from the judgment rendered by Hon'ble Supreme Court of India in Nikesh Tarachand Shah's case(supra) wherein the offence of money laundering has been explained and right to bail of a citizen during investigation or trial has been considered. In this regard, we extract hereunder paras 11 to 19 from the said judgment :
"11. Having heard learned counsel for both sides, it is important to first understand what constitutes the offence of money laundering. Under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as "whosoever", "directly or indirectly" and "attempts to indulge" would show that all persons who are even remotely involved in this offence are sought to be roped in. An important ingredient of the offence is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and "proceeds of crime" is defined under the Act, by Section 2 (1)(u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is referred to in our judgment as the predicate offence). Thus, whosever is involved as aforesaid, in a process or activity connected with "proceeds of crime" as defined, which would include concealing, possessing, acquiring or using such property, would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 3 therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as guilty under the said provision, the said person must not only be involved in any process or activity connected with proceeds of crime, but must also project or claim it as being untainted property.
12. Under Section 4 of the Act, the offence of money laundering is punishable with rigorous imprisonment for a minimum period of three years which may extend to 7 years and fine. Also, under the proviso, where the proceeds of crime involved in money laundering relate to a predicate offence under para 2 of Part A of the Schedule, the sentence then gets extended from 7 years to 10 years.
13. Under Section 5 of the Act, attachment of such property takes place so that such property may be brought back into the economy. Coming now to Chapter VII of the Act with which we are really concerned, Section 43 lays down that Special Courts to try offences under the Act are to be designated for such area or areas or for such case or class or group of cases as may be specified by notification. Section 44 is very important in that the Section provides for the trial of a scheduled offence and the offence of money laundering together by the same Special Court, which is to try such offences under the Code of Criminal Procedure as if it were a court of sessions. Under Section 46, read with Section 65 of the Act, the provisions of the Code of Criminal Procedure apply to proceedings before the Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a court of session.
14. When the Prevention of Money Laundering Bill, 1999 was tabled before Parliament, Section 44, which corresponds to Section 45 of the present Act, provided that several offences punishable under "this Act" are to be cognizable, and the twin conditions for release on bail would apply only insofar as the offences under the Act itself are concerned. When the Act was finally enacted in 2002 and notified in 2005, this scheme changed radically. Now, both the offence of money laundering and the predicate offence were to be tried by the Special Court, and bail is granted only if the twin conditions under Section 45(1) are met, where the term of imprisonment is more than three years for the predicate offence. It is important to note that Clause 44 of the Bill referred only to offences under Section 3 and 4 of the Bill, whereas Section 45 of the Act does not refer to offences under Sections 3 and 4 of the Act at all. Reference is made only to offences under Part A of the Schedule, which are offences outside the 2002 Act. This fundamental difference between the Bill and the Act has a great bearing on the constitutional validity of Section 45(1) with which we are directly and immediately concerned.
15. The provision for bail goes back to Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows:
"No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land."
It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 1215, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminster of 1275, King Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to the Duke of Buckingham, the House of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as "the Five Knights". Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King's Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice's order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, "let right be done as is desired by the petition". Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law.
16. In Bushell's case, decided in 1670, Chief Justice Sir John Vaughan was able to state that:
"the writ of habeas corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law deprived of it."
Despite this statement of the law, one Jenkes was arrested and imprisoned for inciting persons to riot in a speech, asking that King Charles II be petitioned to call a new Parliament. Jenkes went from pillar to post in order to be admitted to bail. The Lord Chief Justice sent him to the Lord Chancellor, who, in turn, sent him to the Lord Treasurer, who sent him to the King himself, who, "immediately commanded that the laws should have their due course." (See Jenke's case, How. St. Tr. 1189 at 1207, 1208 (1676)). It is cases like these that led to the next great milestone of English history, namely the Habeas Corpus Act of 1679. This Act recited that many of the King's subjects have been long detained in prison in cases where, by law, they should have been set free on bail. The Act provided for a habeas corpus procedure which plugged legal loopholes and even made the King's Bench Judges subject to penalties for non-compliance.
17. The next great milestone in English history is the Bill of Rights of 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression "excessive bail ought not to be required...." first appears in Chapter 2, clause 10.
18. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar V. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61.
19. In Gurbaksh Singh Sibbia V. State of Punjab, (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out with great felicity as follows:-
"27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra Nath Chakravarti [AIR 1924 Cal 476, 479, 480 : 1924 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ''Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 1932 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. H.L. Hutchinson [AIR 1931 All 356, 358 : 1931 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Code of Criminal Procedure was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gaudikanti Narasimhulu v. State [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) '1... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."
29. In Gurcharan Singh v. State (UT of Delhi) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) "29....There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail."
30. In AMERICAN JURISPRUDENCE (2nd, Volume 8, p. 806, para 39), it is stated:
"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."
It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
(emphasised by us)
19. We would also like to refer to recent judgment rendered by the Hon'ble Supreme Court of India in Dataram Singh Vs. State of Uttar Pradesh and Another - 2018 (3) SCC 22 (Paras - 2 to 5). Paras - 2 to 5 read as under :-
"2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436-A in the Code of Criminal Procedure, 1973.
4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Re-Inhuman Conditions in 1382 Prisons - (2017) 10 SCC 658 : (2018) 1 SCC (Cri) 90.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India - (2018) 11 SCC 1 : (2017) 13 Scale 609 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : 1980 SCC (Cri) 465 in which it is observed that it was held way back in Nagendra Nath Chakravarti - 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinson - 1931 SCC OnLine All 14 : AIR 1931 All 356 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."
(emphasised by us)
20. The centrum to the question whether to grant bail or not, as we gather from the above portions of the judgments rendered in Nikesh Tarachand Shah's case(supra) and Dataram Singh's case (supra) is that the object of bail is to secure the attendance of the accused at the trial. The proper test to be applied in the solution to the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment.
This Court is conferred with wide powers to grant bail. There is no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 439 CrPC (Section 498 of old Code) . It has been held that it would be unwise to make an attempt to lay down any particular rule which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered.
It has been observed by the Hon'ble Supreme Court of India that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. A presumably innocent person must have his freedom to enable him to establish his innocence. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.
Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
21. Now we consider the accusations against the petitioner and other circumventing circumstances. As noted hereinabove, the allegation against the petitioner is that while he was serving as a bank Manager, the petitioner granted loan to various persons, out of which the petitioner took commission and laundered the money/ proceeds of crime in the sum of Rs.38,95,938/-. The amount of money/proceeds of crime in the sum of approximately Rs.39 lacs, allegedly laundered, assumes importance in view of the provisions of Section 45 First Proviso to Sub Section (1) of the PMLA to the effect that a person who is accused either on his own or along with other co-accused launders money in the sum of less than one crore, may be released on bail.
We have also considered the limitation on granting of bail as provided under Sub Section (2) of Section 45 of the PMLA to the effect that the limitation on granting of bail specified in sub-section (1) of Section 45 of the PMLA is in addition to the limitations under the Code of Criminal Procedure, 1973.
22. We have considered the provisions of Section 437 and 439 of the Code of Criminal Procedure. We find that there is no material available on record to suggest that the petitioner has been previously convicted of any offence.
We have also taken into account the fact that it is the admitted case of the prosecuting agency that the petitioner was not taken in custody during investigation. The petitioner rather cooperated in the investigation process.
The petitioner surrendered to the process of the Court on 15.1.2016 and applied for bail. It has been dismissed by various forums as noted above. Consequently, the petitioner has been in custody for the last approximately two years and seven months.
We have also taken into account the fact that the petitioner is facing proceedings at the instance of Enforcement Directorate in view of case registered by Central Bureau of Investigation (CBI). In the CBI case also, the petitioner remained in custody from 4.7.2011 till 24.2.2012. The petitioner has been on bail in the CBI case. The CBI case formulates the basis for the Enforcement Directorate to proceed against the petitioner.
We have also taken notice of the past conduct of the petitioner. No material has been placed before us to indicate that the petitioner has tried to influence the investigation by way of tampering with the evidence, influencing the witnesses or manipulating the records or overawing any authority or person.
23. We have also taken into account the provisions contained in Section 44(1)(c) of the PMLA which provides that the CBI case and the case initiated by the Enforcement Directorate/ECIR case are to be tried together and decided together.
In the CBI case, 130 witnesses have been cited, of which only six have been examined till date, though the charge-sheet in the CBI case was filed on 13.3.2012, as informed by the learned counsel (s).
In the case being prosecuted by the Enforcement Directorate, the first witness is being examined. There are as many as 24 witnesses as per the prosecuting agency/Enforcement Directorate.
24. We cannot lose sight of the punishment provided under the PMLA. The punishment provided in the case of the petitioner is to be not less than three years but may extend upto seven years. The petitioner, at the cost of repetition, has already been in custody for nearly two years and seven months.
25. Considering the spirit of the law guiding the granting or rejecting the application for bail, we are of the considered opinion that the petitioner is entitled to the grant of bail.
The bail application is accordingly allowed.
26. Petitioner Radhey Shyam Dubey be released on bail in Complaint Case No.1 of 2015 arising out of ECIR/22/PMLA/LZO/2012 (Old No.ECIR/296/DZ/2009 AD (SK), Registered on 15.12.2009), under Section 3/4 of Prevention of Money Laundering Act, 2002 to the satisfaction of the trial Court concerned.
We make it clear that in case the petitioner or his counsel delay the trial proceedings, the prosecuting agency would be at liberty to seek cancellation of bail.
We further make it clear that in case the petitioner approaches the witnesses or influences them in any manner, the prosecuting agency would be at liberty to seek cancellation of bail.
27. Before parting with the order we record that learned counsel for the petitioner and learned counsel for Union of India have given qualitative assistance to the Court for reference not only to the facts of the case but also to various statutory provisions, legislative amendments and the case-laws on the issue.
Order Date :- 19.7.2018 Nishant/kkb