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2018 (7) TMI 2155
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....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....
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....he 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 punisha....
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....poses 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 : "....
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.... 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. 10 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 provis....
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.... 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, w....
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....e 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 V....
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....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 ....
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....cts 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....
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....ocial 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....
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....g 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 procee....