AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2020 (8) TMI 344
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctions 3 and 4 of the Prevention of Money-Laundering Act, 2002 ('PMLA' for brevity). 3. The case, in brief, is that the Anti Corruption Bureau/Economic Offences Wing (ACB/EOW for short), Raipur had registered First Information Report bearing FIR No.9/2015 dated 12.2.2015 against Shiv Shankar Bhatt and 26 other persons in which both the present Applicants were also roped in for alleged commission of offence punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 and Sections 109 and 120B of 3 the Indian Penal Code in the supplementary charge-sheet filed by the ACB/EOW on 5.12.2019. It is alleged that at the relevant time Applicant Alok Shukla was working as the Chairman and Applicant Anil Tuteja was working as the Managing Director in the Public Distribution Corporation (Nagrik Apurti Nigam (in short 'NAN'). It is further alleged that both the Applicants involved in corruption and criminal conspiracy in which the ACB/EOW raided few offices and residences and amongst other things a pen drive was also seized from possession of Girish Sharma, P.A. to Applicant Anil Tuteja consisting of details of transactions between government officials, whereby it was ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubmitted that trial of predicate offence is at dormant stage by virtue of the order dated 24.9.2019 passed by this Court in Criminal Revision No.730 of 2019 (State of Chhattisgarh v. Shivshankar Bhatt and others) (Annexure A-5). No departmental inquiry has been initiated against any of the Applicants nor has even a show cause notice been issued to them. The Central Government and the State Government have granted sanctions to prosecute the 5 Applicants on 4.7.2016 and 17.7.2016, respectively. However, having no explained reason, the supplementary charge-sheet was filed on 5.12.2019 when the State was awaiting the results of election. The Directorate of Enforcement registered the ECIR case on 9.1.2019 and summons were received by the Applicants in March, 2020, i.e., after more than 1 year of registration of the ECIR case. The ECIR case was registered by the Directorate of Enforcement in the jurisdiction of sub-zonal office situated at Raipur and the summons dated 13.3.2020 were issued by Respondent No.5. Therefore, by issuing a summons, Respondent No.5, acting in a mala fide whimsical manner has chosen his own jurisdiction as per his own convenience boosted and motivated by politica....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that the Applicants have preferred the instant bail applications under Section 438 of the Code of Criminal Procedure before this Court directly and they have not assigned any reason why did they not approach to the Court of Session seeking the said relief and, therefore, the present applications moved before this Court are not 7 maintainable. Further, referring to the judgment in Mrs. Nalini Chidambaram v. The Directorate of Enforcement passed by the Madras High Court in Writ Petitions No.32848 and 32849 of 2016 on 24.4.2014, it was submitted by Learned Assistant Solicitor General that the present investigation is being carried out against commission of offence of money laundering under PMLA and the same is nowhere connected with the investigation, inquiry, trial, any outcome of trial of the scheduled offence or any other case. The investigation and the proceedings in both the cases are different and same are not connected with each other by any stretch of imagination. Further, referring to the judgments in Union of India v. Hassan Ali Khan, (2011) 10 SCC 235 and Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement, Criminal Appeal No.1706....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the ground of administrative reasons and for this there is no bar. 6. As regards the arguments advanced by Learned Counsel appearing for the Respondents, Learned Counsel appearing for the Applicants submitted as under: (i) With regard to the jurisdiction of the Court, relying on the judgments in Barun Chandra Thakur v. Central Bureau of Investigation, (2018) 12 SCC 119, Vinod Kumar v. State of U.P., 2019 SCC OnLine All 4821, Y. Chendrasekhara Rao v. Y.V. Kamala Kumari, 1993 CriLJ 3508, Balan v. State of Kerala, 2004 CriLJ 3427, Mohan Lal v. Prem Chand, AIR 1980 HP 36 (FB) and Mubarik v. State of Uttarakhand, Criminal Writ Petition No.2059 of 2018, judgment dated 2.11.2018 passed by High Court of Uttarakhand, it was submitted that both the High Court and the Sessions Court have concurrent jurisdiction for dealing with an application under Section 438 Cr.P.C. and there is no bar that such an application is required to be first filed before the Court of Session and thereafter before the High Court. (ii) With regard to the provision of Section 24 of PMLA, referring to the speech of the then Finance Minister, who had introduced the Prevention of Money-Laundering Bill, 2012 in Rajya....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e material available minutely. 8. As regards the jurisdiction of this Court, there is no doubt that both High Court as well as Court of Session have concurrent jurisdiction for entertaining an application under Section 438 11 Cr.P.C. Referring to and relying on the judgment in Mubarik case (supra), this Court has already held vide order dated 2.7.2019 passed in M.Cr.C.(A) No.918 of 2019 (Ratnesh Singh Chouhan v. State of Chhattisgarh) that High Court as well as Sessions Court have concurrent jurisdiction to entertain an application filed under Section 438 Cr.P.C. and no person can be restrained to move an application under Section 438 Cr.P.C. directly before the High Court and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable. 9. The provisions of Section 24 of the Prevention of Money-Laundering Act, 2002, after substitution by the Prevention of Money-Laundering (Amendment) Act, 2012 (Act 2 of 2013) (Brought into force on 15.2.2013), run thus: "24. Burden of Proof.-In any proceeding relating to proceeds of crime under this Act,- (a) in the case of a person charged with the offence of money-laundering under section 3....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Court has held thus: "34. Again, it is quite possible that the person prosecuted for the scheduled offence is different from the person prosecuted for the offence under the 2002 Act. Mr. X may be a person who is liable to be prosecuted for an offence, which is contained in Part A of the Schedule. In perpetrating this offence under Part A of the Schedule, Mr X may have been paid a certain amount of money. This money is ultimately traced to Mr Y, who is charged with the same offence under Part A of the Schedule and is also charged with possession of the proceeds of crime, which he now projects as being untainted. Mr X applies for bail to the Special Court/High Court. Despite the fact that Mr X is not involved in the money laundering offence, but only in the scheduled offence, by virtue of the fact that the two sets of offences are being tried together, Mr X would be denied bail because the money laundering offence is being tried along with the scheduled offence, for which Mr Y alone is being prosecuted. This illustration would show that a person who may have nothing to do with the offence of money laundering may yet be denied bail, because of the twin conditions that have to be sat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for an offence 15 under Part A of the Schedule and Section 4 of the 2002 Act, such person will be out on bail without his having satisfied the twin conditions of Section 45. However, if in an identical situation, Mr Y is prosecuted for the same offences, but happens to be arrested, and then applies for bail, the twin conditions of Section 45 will have first to be met. This again leads to an extremely anomalous situation showing that Section 45 leads to manifestly arbitrary and unjust results and would, therefore, violate Articles 14 and 21 of the Constitution." 13. Therefore, as held by the Supreme Court in Nikesh Tarachand Shah case (supra), the provisions of Section 45 of PMLA do not apply to Section 438 Cr.P.C. proceedings. 14. The Supreme Court, in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, has held that there is no straitjacket formula for anticipatory bail and it depends upon the facts and circumstances of each case. 15. In Sushila Aggarwal case (supra), the Supreme Court has held thus: "124. Therefore, this Court holds that the view expressed in Salauddin Abdulsamad Shaikh, K.L. Verma, Nirmal Jeet Jair, Satpal Singh, Adri Dharan Das, HDFC Ba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at they should necessarily be imposed or that the anticipatory 17 bail order would be for a time duration, or be valid till the filing of the FIR, or the recording of any statement under Section 161, Cr.P.C., etc. Other conditions may be imposed, if the facts of the case so warrant." 16. Having heard the arguments advanced on behalf of the parties, considering the facts and circumstances of the case, from the discussions made hereinabove and after going through the judgments referred to by Learned Counsel appearing for the parties, it is clear 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. As held by the Supreme Court in Nikesh Tarachand Shah case (supra), it is also clear that the provisions of Section 45 of PMLA do not apply to Section 438 Cr.P.C. proceedings. 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. As held by the Supreme Court in Sushila Aggar....