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TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 685
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....6.2023 passed by the High Court of Chhattisgarh at Bilaspur in Miscellaneous Criminal Case No. 1258/2023 is assailed by way of present Appeal, whereby the High Court has dismissed the bail application filed by the appellant under Section 439 of Cr.P.C. The appellant was arrested on 02.12.2022 in connection with the Crime No. ECIR/RPZ0/09/2022 dated 29.09.2022, registered at the Police Station/Investigating Agency - Directorate of Enforcement, Zonal Office Raipur, Chhattisgarh, for the offences punishable under Sections 186, 204, 353, 384, 120-B of IPC read with Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (for short "PML Act"). 3. Shorn of unnecessary details, facts in brief as emerging from the record, may be stated as under: Dates Particulars 30.06.2022 A search and seizure action under Section 132 of the Income Tax Act was carried out against an individual named Suryakant Tiwari, who was at the time of search and seizure found at Room No. 664, Hotel Sheraton Grand, Whitefield, Bengaluru. 12.07.2022 Shri Pakkiresh Badami, Deputy Director of Income Tax Investigation, lodged an FIR being FIR No. 129/2022 at Kadugodi Police Station, Bengaluru city, agains....
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....d 353 of the IPC on the charge-sheet submitted against the Suryakant Tiwari by the Karnataka Police. 23.06.2023 The High Court of Chhattisgarh at Bilaspur rejected the bail application of the appellant. 27.06.2023 The complainant- Mr. Badami of the FIR No. 129/2022 filed a protest petition under Section 173(8) of the Cr.P.C. against the final report submitted by the Karnataka State Police through Kadugodi Police Station and prayed for the completion of the investigation of offences under Sections 120-B and 384 of the IPC seeking permission to further investigate the matter and file supplementary charge-sheet under the scheduled offences of PMLA. 4. The appellant being aggrieved by the impugned order dated 23.06.2023 passed by the High Court of Chhattisgarh, has preferred this appeal under Article 136 of the Constitution of India. 5. Curiously, the appellant at various places in the synopsis of the list of dates and events and in the memorandum of SLP has raised a grievance that the High Court in the impugned order had failed to appreciate that there was no scheduled offence which was made out against the appellant, as the scheduled offences under Section 384 and 120-B of....
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....ourt of Chhattisgarh at Bilaspur in MCrC No. 1258/2023 is annexed herewith and marked as ANNEXURE A. 6. After serving the said covering memo and the attached documents upon the Ld. Counsel appearing on behalf of ED, the same was filed with the registry of the Hon'ble High Court on 19.06.2023 and was thereafter, mentioned before the Ld. Single Judge of the Hon'ble High Court by the Petitioner's counsel, and these facts were orally brought to the knowledge of the Ld. Single Judge of Hon'ble High Court.... 7. While the matter was mentioned and Hon'ble High Court was orally informed about the contents of the documents that were filed including the cognizance order dated 16.06.2023, detailed arguments were neither called upon by the Hon'ble High Court, nor the same were advanced. ......" 8. Since, the appellant had conveniently remained silent in the above affidavit as to whether the Chargesheet dated 08.06.2023 was in fact produced before the High Court or not, the Court again raised the query as to when the said Chargesheet dated 08.06.2023 was produced before the High Court. In reply thereto, the learned senior counsel submitted that the Chargesheet dated 08.06.2023 was....
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....ating the said documents. 12. Having regard to the above state of affairs, the Court has a reason to believe that there was a bold attempt made by and on behalf of the appellant to misrepresent the facts for challenging the impugned order. 13. The Certificate to be issued by the Advocate-on-Record and the Affidavit to be filed by or on behalf of the petitioner/appellant at the end of the SLP as per the provisions contained in the Supreme Court Rules, do carry sanctity in the eyes of law. It is unbelievable that the battery of lawyers appearing for the appellant did not notice the apparent fact that when the chargesheet and cognizance order were not in existence before the High Court when the arguments were concluded and the judgment was reserved, non-consideration of the same by the High Court could not be made the basis for challenging the said order in the SLP before this Court. 14. It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its f....
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....rs. v. Union of India & Ors. 2022 SCC Online SC 929 (SLP(Crl.) No. 4634 of 2014). (iv) Pressing into service the proviso to Section 45, the submission was made that the appellant being a lady, she should be released on bail more particularly when she is in custody for more than one year and when the continued custody is not required. (v) There was no substantive evidence except the bare allegations made in the prosecution complaint lodged against her, and therefore the questions rebutting the presumption contained in Section 45 did not arise. (vi) There was no prima facie connection or relationship between the appellant and the co-accused- Suryakant Tiwari, Manish Upadhyay or Nikhil Chandrakar in the prosecution complaint filed by the ED, nor any evidence legally maintainable has been produced by the ED. 17. The learned ASG Mr. S.V. Raju appearing for the respondent-ED made following submissions: (i) The prosecution during the course of investigation has collected substantive evidence showing strong nexus between the appellant and the other accused, and the documents produced in the Court indicate prima facie material establishing money laundering at the hands of the appel....
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....tion 3. The offence of Money Laundering has been defined in Section 3, which is punishable under Section 4 of the said Act. Section 45 makes the offences under the PMLA to be cognizable and non bailable. As regards the twin conditions for the grant of bail contained in Section 45(1), it has been held by the Three-Judge Bench in Vijay Madanlal (supra) that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering. 19. Though it is true that the Court while considering an application seeking bail is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of ....
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....trict level officers. This illegal authority was essential for him to run his empire of illegal extortion from Coal & Iron Pellet transportation. Without his concurrence, no NOG was issued by the district machinery. All this was made possible by the fact that he was in the good books of Mrs. Saumya Chaurasia. Therefore, she has directly indulged in the offence of Money Laundering as defined under section 3 of the PMLA, 2002 being actually involved in the process of Money Laundering by way of possession, concealment, use, acquisition and projecting the Proceeds of Crime as untainted property. As per the findings of the investigation, it can be inferred that Saumya Chaurasia has directly acquired proceeds of crime as defined under section 2(l)(u) of the PMLA, 2002 to an extent of more than Rs. 30 crores. ED's investigation makes it evident that although all the money of extortion on Coal & Iron Pellet transportation was collected by the syndicate of Suryakant Tiwari, he was not the final beneficiary of this scam. He did utilize large amounts of money for purchasing benami assets, but big chunks of the money was transferred to Saumya Chaurasia, spent on political funding and tr....
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....so to Section 45 of the Prevention of Money Laundering Act, 2002 confers a discretion on the Court to grant bail where the accused is a woman. Similar provisions of Section 437 of the Code of Criminal Procedure, 1973 have been interpreted by this Court to mean that the statutory provision does not mean that person specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail. (See Prahlad Singh Bhati vs. NCT, Delhi and Another (2001) 4 SCC 280)." 24. The use of the expression "may be" in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court considering the facts and circumstances of each case, and could not be construed as a mandatory or obligatory on the part of the Court to release them. Similar benevolent provision for granting bail to the category of persons below the age of sixteen years, women, sick or infirm has been made in Section 437 Cr.P.C. and many other special enactments also, however by no stretch of imagination could such provision be construed as obligatory or mandatory in nature, otherwise all seri....
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.... proceedings were/are without jurisdiction. 27. Apart from the fact that neither the Chargesheet dated 08.06.2023 nor the cognizance order 16.06.2023 were placed on record during the course of arguments before the High Court as they never existed at that time, the I.O. in the Chargesheet filed in connection with the said FIR no. 129 of 2022 against Suryakant Tiwari has categorically mentioned that "as the accused (Suryakant Tiwari) found to be committed offence under Section 384 of IPC with his henchmen at Chhattisgarh State for which the report would be prayed to Chhattisgarh Police through proper channel." Hence, the offence under Section 384 could not be said to have been dropped by the I.O. while submitting the chargesheet in respect of the said FIR. 28. That apart, it is very much pertinent to note that when the FIR is registered under particular offences which include the offences mentioned in the Schedule to the PMLA, it is the court of competent jurisdiction, which would decide whether the Charge is required to be framed against the accused for the scheduled offence or not. The offences mentioned in the chargesheet by the I.O. could never be said to be the final conclusio....