2020 (8) TMI 344 - HC - Money Laundering

Anticipatory bail granted under Section 438 CrPC; Section 24 PMLA inapplicable pre-charge; delay and no tampering noted

The HC allowed the applicants' applications for anticipatory bail in a money-laundering probe, holding that Section 438 CrPC petitions are maintainable ... Money Laundering - illegal collection of money - Grant of Anticipatory Bail - corruption and criminal conspiracy in which the ACB/EOW raided few offices and residences - allegation that Applicant Anil Tuteja received an amount of ₹ 2,21,94,000 and Applicant Alok Shukla received an amount of ₹ 1,51,43,000 illegally during the period from 30.5.2014 to 18.2.2015 and 1.7.2014 to 18.2.2015, respectively - HELD THAT:- There is concurrent jurisdiction of the High Court and the Court of Session for entertaining an application preferred under Section 438 Cr.P.C. and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable. From the speech of the then Finance Minister, it is also clear that the provisions of Section 24 of PMLA only apply after framing of a charge against the accused - In the instant matter, the predicate offence is of the year 2014–2015. In said case, charge-sheet has already been filed and no recovery was made from any of the Applicants. No departmental proceeding has been initiated against any of the Applicants nor has any show cause notice been issued against them. No case regarding acquisition of any disproportionate property has been registered against them. Out of 212, about 153 witnesses have already been examined. Despite the fact that the 18 Applicants are officers of Indian Administrative Services, there is no allegation levelled against them that they ever influenced any of the witnesses or tampered with any evidence. ECIR case was registered against them in the year 2019. Notice was issued to them for the first time in the ECIR case in the month of March, 2020. The delay in issuance of notice has not been explained. The benefit of anticipatory bail provided to the Applicants - both the applications for grant of anticipatory bail are allowed. Issues: (i) Whether an application under Section 438 Cr.P.C. is maintainable directly before the High Court; (ii) Whether Section 24 of the PMLA shifts the burden of proof on the accused at the anticipatory bail stage; (iii) Whether Section 45 of the PMLA applies to proceedings under Section 438 Cr.P.C.; (iv) Whether anticipatory bail should be granted to the applicants in the facts of this case.Issue (i): Whether an application under Section 438 Cr.P.C. is maintainable directly before the High Court.Analysis: The Court examined precedent and concurrent jurisdiction principles and held that both the High Court and the Court of Session have concurrent jurisdiction to entertain applications under Section 438 Cr.P.C.; there is no bar to moving the High Court directly.Conclusion: The application under Section 438 Cr.P.C. filed directly before the High Court is maintainable (in favour of the Applicants).Issue (ii): Whether Section 24 of the PMLA places the burden of proof on the accused at the anticipatory bail stage.Analysis: The Court considered the statutory text and the explanatory speech made when amending Section 24 and concluded that the burden envisaged under Section 24 shifts to the accused only after a charge is framed against him.Conclusion: Section 24's burden of proof does not apply at the anticipatory bail (pre-charge) stage; it applies after framing of charge (in favour of the Applicants).Issue (iii): Whether Section 45 of the PMLA applies to Section 438 Cr.P.C. proceedings for grant of anticipatory bail.Analysis: Relying on the Supreme Court's reasoning in Nikesh Tarachand Shah, the Court found that Section 45, which prescribes conditions for grant of bail post-arrest, does not apply to pre-arrest/anticipatory bail under Section 438 Cr.P.C., and that anticipatory bail remains available subject to usual judicial discretion and conditions.Conclusion: Section 45 of the PMLA does not apply to Section 438 Cr.P.C. proceedings (in favour of the Applicants).Issue (iv): Whether anticipatory bail should be granted to the applicants given the facts of the case.Analysis: Considering the facts delay in issuance of summons, predicate offences being of 20142015 with charge-sheet filed, no departmental proceedings or show cause notices, lack of direct recovery from applicants, large number of witnesses already examined in the predicate trial, applicants' cooperation with investigation and recorded statements, and absence of pleaded grounds necessitating custodial interrogation the Court applied the discretionary principles governing anticipatory bail including the allowance for special conditions where warranted.Conclusion: On the totality of facts and exercising judicial discretion, anticipatory bail is granted to the applicants with specified bond and conditional terms (in favour of the Applicants).Final Conclusion: The High Court holds that the applicants are entitled to anticipatory bail under Section 438 Cr.P.C.; the High Court may be approached directly for such relief, Section 24 of the PMLA does not impose a pre-charge burden at the anticipatory bail stage, and Section 45 of the PMLA does not restrict pre-arrest bail under Section 438 Cr.P.C.Ratio Decidendi: An application for anticipatory bail under Section 438 Cr.P.C. is maintainable directly before the High Court; Section 24 of the PMLA effects a burden shift only after framing of charge; and Section 45 of the PMLA does not apply to pre-arrest bail proceedings under Section 438 Cr.P.C., thereby permitting the grant of anticipatory bail subject to judicial discretion and appropriate conditions.