2023 (12) TMI 1428 - HC - Money Laundering

Anticipatory bail denied for corruption charges but regular bail consideration directed per Supreme Court guidelines

Nalini Prusty Versus Enforcement Directorate, BBSR

The Orissa HC disposed of a bail application filed by a petitioner charged under Prevention of Corruption Act for possessing disproportionate assets. The ... Seeking grant of bail - alleged involvement in the offences U/s. 13(2), R/w.13(1)(b) of the Prevention of Corruption (Amendment) Act, 1988 - acquisition and possession of assets disproportionate to known sources of income by the Petitioner - HELD THAT:- Admittedly, in the case in hand the learned court has issued summon directing the Petitioner to appear with an option either to appear in person or through pleader. No order of NBW has been issued even though the offence alleged is non-bailable in nature. Adverting to the provision enumerated U/s 209 Cr.P.C it is apt to mention that the Special Court upon appearance of a party pursuant to the institution of a case by the Directorate subject to the restrictions enumerated U/s 45A of the PMLA relating to bail, inter alia, may remand the accused to custody during, and until the conclusion of the trial. Conclusion - While this court is not inclined to grant relief prayed for directs that in the event the Petitioner appears before the learned Special Court in seisin over the matter and move for grant of regular bail, the same shall be considered on its own merit, keeping in view the developments in law as laid down by the Apex Court in the matter of Vijay Madanlal Choudhury v. Union of India [2022 (7) TMI 1316 - SUPREME COURT (LB)] vis-à-vis the facts emerges in the case in hand in their proper perspective and further that Petitioner has cooperated with the investigation so far as acknowledged by the opposite party too and dispose of in accordance with law without being influenced of any observation made herein. The ABLAPL stands disposed of accordingly. 1. ISSUES PRESENTED and CONSIDEREDThe core legal issues considered in this judgment include:- Whether the petitioner is entitled to anticipatory bail under Section 438 of the Criminal Procedure Code (Cr.P.C.) in the context of proceedings under the Prevention of Money Laundering Act (PMLA).- The applicability of the Cr.P.C. provisions to proceedings before the Special Court under the PMLA, particularly concerning the issuance of summons and potential judicial custody.- The interpretation of legal precedents and statutory provisions related to anticipatory bail and the procedural framework under the PMLA.2. ISSUE-WISE DETAILED ANALYSISAnticipatory Bail under Section 438 Cr.P.C.- Relevant Legal Framework and Precedents: The petitioner sought anticipatory bail under Section 438 Cr.P.C., fearing judicial custody upon her appearance before the Special Judge (PMLA). The court examined precedents, particularly the Supreme Court's interpretation in cases like Rana Ayyub v. Directorate of Enforcement and Vijay Madanlal Choudhury v. Union of India, which address the applicability of Cr.P.C. provisions in PMLA proceedings.- Court's Interpretation and Reasoning: The court noted that while the PMLA contains non-obstante clauses that override Cr.P.C. provisions, sections like 46(1) and 65 of the PMLA specifically apply Cr.P.C. provisions to proceedings before a Special Court. The court emphasized that the Special Court, as the court of first instance, has the authority to take cognizance under the PMLA, akin to a Magistrate's powers under the Cr.P.C.- Key Evidence and Findings: The court referenced the petitioner's cooperation during the investigation and the absence of a Non-Bailable Warrant (NBW) against her. The court also considered the statutory bar under Section 45 of the PMLA and the presumption under Section 24 of the Act.- Application of Law to Facts: The court applied the legal framework to the petitioner's situation, highlighting that anticipatory bail under Section 438 Cr.P.C. is not maintainable once the petitioner is amenable to the court's custody through summons. The court reiterated that the authority of the court would be undermined if anticipatory bail were granted in such circumstances.- Treatment of Competing Arguments: The petitioner's counsel argued for anticipatory bail based on the absence of arrest during the preliminary investigation and the petitioner's cooperation. In contrast, the Directorate's counsel referred to previous court decisions, emphasizing that anticipatory bail is not applicable once a person is summoned to appear before the court.- Conclusions: The court concluded that anticipatory bail under Section 438 Cr.P.C. is not applicable in this case. However, the court directed that if the petitioner appears before the Special Court and applies for regular bail, it should be considered on its own merits, taking into account the petitioner's cooperation and the legal developments.3. SIGNIFICANT HOLDINGS- Preserve Verbatim Quotes of Crucial Legal Reasoning: The court quoted, 'Keeping in view the submission of the parties made herein and the material emanates there from as placed before this Court, further keeping in view the provision as to presumption as contained in Section 24 of the Act and the statutory bar placed under Section 45 of the PML Act...while this court is not inclined to accept the prayer for anticipatory bail...'- Core Principles Established: The court established that anticipatory bail under Section 438 Cr.P.C. is not maintainable once a person is summoned to appear before a Special Court under the PMLA. The court's authority to decide on custody matters upon appearance is paramount.- Final Determinations on Each Issue: The court determined that the petitioner's request for anticipatory bail was not maintainable. However, it allowed for the possibility of regular bail upon the petitioner's appearance before the Special Court, emphasizing the need for the court to consider the application on its own merits and in accordance with legal developments.