TaxTMI 
TaxTMI 
2020 (8) TMI 229
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....o. 05/DLZO-II/2019 Dated: 24.07.2019 and FIR NO. 189/2019 PS Economic Office Wing, Mandir Marg U/S 409/120B IPC dated 23.09.2019 on such terms and conditions as this Hon'ble Court may deem fit and proper; and (c) Issue such other appropriate writ, order or directions as this Hon'ble court may deem just and proper to issue in the circumstances of the case." 2. Along with the petition, there was CRL.M.A.6440/2020 filed on behalf of the petitioner seeking an urgent relief seeking that the minutes of meeting of the Hon'ble High Powered Committee of this Court dated 28.03.2020 be stayed and that the respondent be directed to release the petitioner on bail/parole on such terms and conditions as the Court may consider appropriate. 3. Vide order dated 15.05.2020, the prayer made by the petitioner seeking to be released on interim bail/parole,- was declined, however, vide paragraph 19 of the order dated 15.05.2020, it was expressly observed to the effect that nothing stated in the said order dated 15.05.2020 would amount to any expression on the merits or demerits of W.P.(CRL) 814/2020 nor would the dismissal of the prayer made by the petitioner seeking the grant of interim b....
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....n the said cases has thus, been conducted by the EOW i.e. the Economic Offences Wing. 7. Vide submissions made on 17.07.2020 as already observed hereinabove, the grievance of the petitioner is now confined only to the categorizations made by the Hon'ble High Powered Committee of this Court vide minutes dated 28.03.2020, which have since been reiterated vide minutes dated 18.04.2020, 18.05.2020, 20.06.2020 and 31.07.2020 of the Hon'ble High Powered Committee of this Court pursuant to directions of the Hon'ble Supreme Court dated 23.03.2020 in Suo Moto Writ Petition (C) No.1/2020- IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, whereby, the Hon'ble Supreme Court in view of the raging corona pandemic, had been formed to determine the class of prisoners that could be released on parole or on interim bail for such period as the Hon'ble High Powered Committee thought it appropriate and whereby the Hon'ble Supreme Court also left it open for the High Powered Committee of each State/Union Territory to determine the category or prisoners who should be released on parole or on interim bail, depending upon the nature of offence, number of years for which he/she shall be sentenced or the se....
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....nishment for 7 years or less; and if (iii) UTP is in custody for a period of one month or more; (iv) In case of Women UTP, if she is in custody for a period of 15 days or more; Besides the UTPs falling in above categories, those inmates who are undergoing Civil Imprisonment can also be considered for 'interim bail' of 45 days. It has further been resolved that following category of UTPs, even if falling in the above criterion, should not be considered:- (i) All inmates who are undergoing trial for intermediary/large quantity recovery under NDPS Act; (ii) Those under trial prisoners who are facing trial under Section 4 &6 of POCSO Act; (iii) Those under trial prisoners who are facing trial for offences under section 376, 376A, 376B, 376C, 376D and 376E and Acid Attack; (iv) Those UTPs who are foreign nationals; and (v) Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act)/ PMLA ; and (vi) Cases investigated by CBI/ED/NIA/Special Cell Police and Terror related Cases, cases under Anti National Activities and Unlawful Activities(Prevention) Act etc." 9. Vi....
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....OVID-19 positive. In view of this situation vide his letter dated 16.05.2020, DG (Prisons) has requested that the criteria adopted earlier needs to be relaxed so as to further decongest the jails as still the present occupancy of the Jail exceeds the optimum capacity of the Jail. In view of the prevailing situation and to prevent the spread of COVID-19 (Novel Corona Virus) and to ensure social distancing amongst prisoners, the Committee is of the opinion that the criteria needs to be further relaxed to give effect to directions of Hon'ble Supreme Court of India. On directions of Hon'ble Chairpersons, DG (Prisons) was requested to furnish the information, for the impact analysis qua the proposed relaxed criteria of UTPs. The same is accordingly submitted. The Members of the Committee discussed the report submitted by DG (Prisons) vide his letter dated 16.05.2020 and resolved that prisoners falling in following criteria may now be considered for grant of interim bail for 45 days in view of the circumstances in which we are in, preferably on 'Personal Bond' : (i) Under trial prisoners (UTPs) facing trial for a case under Section 302 IPC and are in jail for mo....
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.... for being considered, should have a certificate of good conduct during their respective custody period from Jail Superintendent for him to qualify in the abovementioned category. Chairperson of the Committee has directed Kanwal Jeet Arora, Member Secretary, Delhi State Legal Services Authority (DSLSA) to request District Judges to depute a Designated Court/Special Additional Sessions Judge, if feasible for hearing the applications for interim bail preferred by the panel lawyers of DSLSA on the basis of criteria laid down by this Committee, so as to have expeditious disposal of the applications. In the event of Court being satisfied that the under trial prisoners falling in the above mentioned criteria as well as the criteria adopted earlier, are to be released on interim bail, they may be released on 'Personal Bond', to the satisfaction of Jail Superintendent so as to implement the social distancing policy of the Government. It is clarified that the decision taken by this Committee for release of prisoners on "interim bail" vide criterion adopted in the meeting dated 28.03.2020, 07.04.2020, 18.04.2020, 05.05.2020 and the one adopted hereinabove today, shall in no....
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....racting the corona virus and that thus, the classification and categorization by the Hon'ble High Powered Committee of this Court not permitting the consideration of the grant of interim bail/parole in view of the prevailing pandemic to UTPs alleged to have committed economic offences, is wholly unconstitutional and that it is violative of the fundamental rights of the petitioner guaranteed under Articles 14 & 21 of the Constitution of India, in as much as, the UTPs too have the 'right to live' as guaranteed under Article 21 of the Constitution of India. 13. During the course of the submissions that were made on behalf of the petitioner, it was further submitted to the effect that the Hon'ble High Powered Committee of this Court vide its minutes could not have supplanted the rights of UTPs for consideration of the grant of bail/parole which are available to such UTPs in terms of Section 437 & 439 of the Cr.P.C., 1973 and that the Hon'ble High Powered Committee could have only supplemented vide guidelines as to how interim bail/parole could be granted to the UTPs in view of the present pandemic. 14. Through his written submissions, the petitioner submits that the guidelines of....
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....ough this classification is against established medical practice and protocols. Inter alia the petitioner submits that the "nature of the offence" and "gravity of the offence" does not appear to be the criteria adopted by the Hon'ble High Powered Committee of this Court since persons accused of offences under Section 302 IPC (murder) (carrying punishment upto life imprisonment) have been considered eligible as opposed to persons who have been accused of economic crimes under the PMLA Act (carrying maximum punishment of 7 years) and having caused no "bodily injury" to the society. 17. The petitioner has further submitted that the criteria prescribed by the Committee, promotes creation of a class within a class, that is, it seeks to sub-categorize UTPs who have only been "accused of" commission of an offence and have not yet even been charged or found guilty and by virtue of this criteria, the distinction between "preventive detention" and "punitive detention" has been negated in as much even those under "punitive detention" have been held eligible for release as per the criteria set forth by the committee, but those who are still undergoing trial and are lodged on preventive dete....
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....en a outbreak in Tihar Jail, where the UTPs have been quarantined and that there have been outbreaks of the virus in other jails also across the country as well as the jails in Delhi. 22. Inter alia the petitioner has submitted that the present case is not a fit case of an economic offence as has been sought to be portrayed by the respondent and does not involve public money and that the provisions of the PMLA Act have been attracted as an offence under Section 420 of the IPC is a Scheduled Offence and that the PMLA provisions came into force because of the deeming provision of Sections 4/44/45 of the said enactment. Inter alia the petitioner submits that there is no reason for his continued detention in custody, in as much as he has been falsely implicated by the complainant and that the petitioner has himself filed a complaint before the EOW for monies that RHC Holdings Pvt. Ltd. was cheated of. 23. The petitioner submits that the FIR in the instant case having been lodged on a private complaint of Religare Enterprises Ltd. ("REL"), the petitioner submits that the complaint has been filed only in order to prevent the petitioner from seeking action against REL for the illega....
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....led to seek the grant of bail in terms thereof and in the prayer clause (a) as already reproduced elsewhere hereinabove, the petitioner seeks the quashing of the minutes of the meeting of the Hon'ble High Powered Committee of this Court held on 28.03.2020 alone. 26. Thus, the aspect as to whether or not, the applicant is entitled to the grant of bail on merits or whether the applicant is entitled to the grant of bail on the ground of parity to the co-accused Dr.Shivinder Mohan Singh and Anil Saxena and as to whether the provisions of the PMLA Act, 2002 are not attracted in the instant case and as to whether there are no public funds involved, in relation to the allegations that have been made in the complaint or in the charge sheet filed by the EOW against the petitioner are not subject matter of consideration of the present petition qua the prayer clause (a) to the extent of which the prayer made in the present petition has been confined. 27. On behalf of the respondent i.e. State (Govt. of NCT of Delhi) arrayed as the respondent no.1 and on behalf of another respondent i.e. the Directorate of Enforcement arrayed as the respondent no.2, the prayer made by the petitioner seek....
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....hus, necessarily required to be treated differently in the matter of bail, in as much as the economic offenders ruin the economy of the State and their offences affect the very fabric of democratic governance and probity in public life. Reliance in relation thereto is sought to be placed on behalf of the respondent no.1 on the observations of the Hon'ble Supreme Court in "State of Gujarat v. Mohanlal Jitamalji Porwal" (1987) 2 SCC 364. 30. Inter alia the respondent no.1 has submitted that the discretion to grant of bail in non-bailable offences remains with the Court and cannot be claimed as a matter of right and that the petitioner cannot be allowed to bypass the remedy provided by the Code of Criminal Procedure, 1973 of filing the appropriate application under Section 437/439 of the Cr.P.C. and that the petitioner, cannot be allowed to invoke the extraordinary, discretionary, equitable remedy of this Court, by bypassing the remedy statutorily provided and that the provisions of Article 226 of Constitution of India cannot be allowed to be invoked when there is a specific provision provided in the Code of Criminal Procedure, 1973 for applying for bail. 31. The respondent no.2....
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....ondition of RFL was, to a large extent on account of willful defaults on significant unsecured loans, defined as the Corporate Loan Book (CLB), by borrower entities either related, controlled or associated with the promoters, all of who had been provided the subject loans from RFL on non arms length basis, in violation of corporate governance norms and in contravention of policies and prudential behaviour expected of a NBFC registered with the RBI. 33. The respondent no.2 has further submitted that the RBI (being the regulator for NBFCs) had from time to time expressed concerns regarding the CLB portfolio of RFL, but these concerns were not addressed by the promoters and that the RBI had specifically raised concerns about the promoters using their influence for disbursal of high value unsecured loans to entities with no financial standing (but controlled or associated with the promoters) and breach of corporate governance norms. Inter alia through its response, the respondent no.2 has submitted that in its inspection report dated 06.01.2012 for the financial year ending March 2010, RBI had observed that RFL had a practice of parking a major chunk of surplus funds with the fellow....
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....nion Territory would constitute a Hon'ble High Powered Committee comprising of (i) Chairman of the State Legal Services Committee, (ii) the Principal Secretary (Home/Prison) by whatever designation it is known as, (ii) Director General of Prison(s), to determine which class of prisoners can be released on parole or an interim bail for such period as may be thought appropriate and that the Hon'ble Supreme Court made it clear that it had left open for the High Powered Committee of the State/Union Territory to determine the category of prisoners who should be released in accordance therewith, depending upon the nature of offence, the number of years to which he or she has been sentenced or the severity of the offence with which he/she is charged with and is facing trial or any other relevant factor, which the Committee may consider appropriate. 36. Vide order dated 13.04.2020, the Hon'ble Supreme Court clarified the order dated 23.03.2020 observing to the effect:- "We make it clear that we have not directed the States/Union Territories to compulsorily release the prisoners from their respective prisons. The purpose of our aforesaid order was to ensure that States/Union Ter....
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....;'. The said decision was taken only after considering the relevant factors and on the basis of objective satisfaction arrived at by the Committee. The criteria was adopted taking into consideration class/category of offences in mind and not having prisoner-centric approach. The object was only to release some of the prisoners and not all the prisoners on a reasonable classification arrived at on the basis of orders passed by Hon'ble Supreme Court, intending to implement the same in letter and spirit. The submissions made in the representation in hand, relates to the applicant only. However, the Committee as stated earlier, was not formed to look into merits or demerits of an individual case for being released on interim bail, rather it was formed to lay down a criteria taking into consideration a particular class and not any particular prisoner or inmate. In view thereof, this Committee is of the opinion that the representation is unmerited and the same is accordingly rejected. It is however made clear that this Committee for release of prisoners on "interim bail" vide criterion adopted in the meetings dated 28.03.2020, 07.04.2020, 18.04.2020, 05.05.2020, 18.....
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.... representation of the applicant observed also to the effect that the submissions made in the representation, related to the applicant only, but, that the Committee, was not formed to look into merits or demerits of an individual case for being released on interim bail and rather it was formed to lay down a criteria taking into consideration a particular class and not any particular prisoner or inmate and that the Committee thus, was of the opinion that the representation filed by the applicant/petitioner herein was unmerited and the same was accordingly rejected. 40. Significantly, however, the Hon'ble High Powered Committee made it clear that the guidelines and minutes of the Committee for release of prisoners on "interim bail" vide criterion adopted in the meetings dated 28.03.2020, 07.04.2020, 18.04.2020, 05.05.2020, 18.05.2020 and 20.06.2020, would in no way affect the rights of other UTPs, who do not stand covered under these categories, from invoking the jurisdiction of concerned courts for grant of regular/interim bail. The Hon'ble High Powered Committee further observed to the effect that the applicant was at liberty to file the bail application before the concerned Cou....
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.... in Suo Moto Writ Petition (C) No.1/2020- IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS, stifles the right to liberty of the petitioner under Article 21 of the Constitution of India or the right to life under the Constitution of India, is wholly untenable. 43. It is thus, essential to observe that the release of an accused on bail or on interim bail in a non-bailable offence, which he/she is alleged to have committed, is not a vested right in any accused/convict and falls within the discretionary jurisdiction of the Court concerned to grant or not to grant the prayer of an accused seeking bail or interim bail. 44. It is essential to observe that the order of the Hon'ble Supreme Court dated 13.04.2020 clarified its order dated 23.03.2020 in Suo Moto Writ Petition (C) No.1/2020 IN RE : CONTAGION OF COVID 19 VIRUS IN PRISONS and thereby, the Hon'ble Supreme Court has made it clear that it has not been directed that the State/Union Territories have compulsorily to release the prisoners from the respective prisons and that the purpose of the order dated 16.03.2020 was to ensure that the State/Union Territories assess the situation in their prisons having regard to the outbreak of....
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....itted without deliberated mens rea. The economic offences however, apparently, do not fall within such domain of non-intentional and non-existent culpable mens rea. Thus, the contention raised on behalf of the petitioner that there has been an arbitrary and unjust classification made by the Hon'ble High Powered Committee of this Court vide minutes dated 28.03.2020 as adhered to till the minutes dated 31.07.2020, qua offences falling under cases under the PMLA Act and those investigated by the CBI/ED/NIA /Special Cell of Delhi Police and Terror related Cases, cases under Anti National Activities and Unlawful Activities(Prevention) Act etc., cannot be accepted as it cannot be contended that these said offences have not been distinguished from other offences on the basis of any intelligible differentia. 47. The written submissions submitted on behalf of the complainant pursuant to order dated 17.07.2020 submit appropriately to the effect that though, there have been relaxations of the categories of UTPs who have been exempted from the category of criteria for release of UTPs on interim bails, the criteria in relation to the under trial prisoners facing the trial under the PC Act, P....