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2024 (8) TMI 614
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....the CBI on 17th August 2022, and ED Case No. HIU-II/14/2022 came to be registered by the ED on 22nd August 2022. 4. Since both the cases arise out of similar facts, the latter being the predicate offence and the former being a case registered on the basis of the predicate offence, both these appeals are heard and decided together. FACTS IN BRIEF: 5. The present case travelled two rounds before the trial court, the High Court and this Court. This is now the third round before this Court wherein the appellant is seeking bail in connection with the aforesaid two cases. 6. On the basis of a letter dated 20th July 2022 addressed by Shri Vinai Kumar Saxena, the Lieutenant Governor of Delhi, alleging irregularities in the framing and implementation of Delhi's Excise Policy for the year 2021-22, the Director, Ministry of Home Affairs had directed an enquiry into the said matter vide Office Memorandum dated 22nd July 2022. On 26th February 2023, the appellant came to be arrested by the CBI. Subsequently, the appellant was arrested by the ED on 9th March 2023. 7. After investigation, CBI filed charge-sheet on 25th April 2023 for the offences punishable under Sections 7, 7A, 8 ....
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....mplaint/charge-sheet. 13. Accordingly, after filing of the final complaint/chargesheet, the appellant has approached this Court by way of the present appeals. This Court, vide order dated 16th July 2024 had issued notice. In response thereto, counter affidavit has been filed on behalf of the ED as well as the CBI opposing the present appeals. SUBMISSIONS: 14. We have extensively heard Dr. Abhishek Manu Singhvi, learned Senior Counsel appearing on behalf of the appellant and Shri Suryaprakash V. Raju, learned Additional Solicitor General (ASG) appearing on behalf of the respondents. 15. A preliminary objection has been raised on behalf of the learned ASG that the appellant cannot be permitted to file second set of SLPs to challenge the order of the High Court dated 21st May 2024 when the earlier SLPs arising out of the same order were disposed of. He submitted that the liberty granted by this Court vide order dated 4th June 2024 has to be construed as a liberty to apply to the trial court afresh. It is submitted that, only after the appellant approaches the trial court and in the event he does not succeed before the trial court, thereafter he approaches the High Court an....
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....matter, the ED has cited 224 witnesses and produced 32,000 pages of documents. He further submitted that, in the CBI matter, the CBI has cited 269 witnesses and produced around 37,000 pages of documents. It is therefore submitted that in all there are 493 witnesses, excluding the ones in the 4th Supplementary Charge-sheet filed by the CBI, who will have to be examined and that in total the documents are running into around 69,000 pages. 18. Dr. Singhvi submitted that the ED has deliberately concealed the documents it acquired during investigation by putting documents exculpating the accused persons in the category of "un-relied upon documents". It is submitted that, as such, it was necessary for the appellant to inspect such "un-relied upon documents". He further submitted that there was an inordinate delay on the part of the ED and the CBI in producing the list of "un-relied upon documents". 19. Dr. Singhvi submitted that, taking into consideration the voluminous number of witnesses and documents, there is no possibility of the trial seeing the light of the day and therefore the appeals filed by the appellant deserve to be allowed. 20. Shri Raju vehemently opposed the pre....
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.... he cannot be permitted to take the benefit of the same. 23. The learned ASG submitted that unless the triple conditions as stipulated under Section 45 of the PMLA are satisfied, no person accused of an offence shall be released on bail. It is submitted that, in the present case, this Court itself by the first order has found that the appellant was not entitled for bail on merits and as such, the second condition stipulated under Section 45 of the PMLA that there are reasonable grounds for believing that he is not guilty of such offence, would not be satisfied in the present case. 24. The learned ASG further submitted that the appellant is a very influential person having occupied the office of Deputy Chief Minister of Delhi when the crime was committed. He submitted that if the appellant is released on bail, there is every possibility of him influencing the witnesses or tampering with the evidence. 25. Dr. Singhvi, in rejoinder, has submitted that the contention that the trial is being delayed due to the applications being filed by the appellant under Section 207 Cr.P.C. is totally incorrect. He submitted that the said applications were required to be filed since the pros....
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....stances, or in case the trial is protracted and proceeds at a snail's pace in next three months. It was also observed that if such an application is filed in the aforesaid circumstances, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail application including the judgment of this Court. Shri Tushar Mehta, learned Solicitor General on instructions would submit that the investigation would be concluded and final complaint/charge sheet would be filed expeditiously and at any rate on or before 03.07.2024 and immediately thereafter, the trial court will be free to proceed with trial. In the light of the said submissions made and having regard to the fact that the period of "6-8 months" fixed by this Court by Order dated 30.10.2023 having not come to an end, it would suffice to dispose of these petitions with liberty to the petitioner to revive his prayer afresh after filing of the final complaint/Charge-sheet as assured by learned Solicitor General. Needless to state that in the event of such an application being filed, the same would be considered on its own merits as already observed by this Court vide parag....
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.... as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others (2021) 2 SCC 427, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be. 27. The appellant - Manish Sisodia has argued that given the number of witnesses, 294 in the prosecution filed by the CBI and 162 in the prosecution filed by the DoE, and the documents 31,000 pages and 25,000 pages respectively, the fact that the CBI has filed multiple charge sheets, the arguments of charge have not commenced. The trial court has allowed application of the accused for furnishing of additional documents, which order has been challenged by the prosecution under Section 482 of the Code before the High Court. It was stated at the Bar, on behalf ....
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....dical emergency due to illness of his wife. Such application would be also examined on its own merits." 29. A perusal of the aforesaid would reveal that this Court was concerned about the prolonged period of incarceration suffered by the appellant. After considering various earlier pronouncements, this Court emphasised that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. Relying on Vijay Madanlal Choudhary and Others v. Union of India and Others (2022) SCC OnLine SC 929 : 2022 INSC 756 , this Court observed that Section 436A Cr.P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period. This Court recorded the assurance given by the prosecution that they shall conclude the trial by taking appropriate steps within next 6-8 months. This Court, after recording the said submissions, granted liberty to the appellant to move a fresh application for bail in case of change in circumstances or in case the trial was protracted and proceeded at a snail's pace in next three months. This Court observed that if any application was file....
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.... A careful reading of the second order of this Court dated 4th June 2024 would show that this Court recorded that they did not propose to go into the arguments or dwell upon it in view of the liberty granted in the first order of this Court. Thereafter, this Court noticed the assurance of the learned Solicitor General that the investigation would be concluded and final complaint/charge-sheet would be filed at any rate on or before 3rd July 2024. This Court further observed in its second order that since the period of 6-8 months fixed by it in its first order had not come to an end, it was inclined to dispose of this petition with liberty to the appellant to revive his prayer. It will be a travesty of justice to construe that the carefully couched order preserving the right of the appellant to revive his prayer for grant of special leave against the High Court order, to mean that he should be relegated all the way down to the trial court. The memorable adage, that procedure is a hand maiden and not a mistress of justice rings loudly in our ears. 34. In this respect, we may also gainfully refer to one of the recent pronouncements by a bench of this Court to which one of us (B.R. G....
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.... of the said order, this Court observed that the right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 Cr.P.C. and Section 45 of the PMLA. The Court held that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted that he be ensured and given a speedy trial. It further observed that when the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, would be guided to exercise the power to grant bail. The Court specifically observed that this would be true where the trial would take years. It could thus clearly be seen that this Court, in the first round of litigation between the parties, has specifically observed that in case of delay coupled with incarceration for a long period and depending on the nature of the allegations, the right to bail will have to be read into Section 45 of PMLA. 38. A Division Bench of this Court in the case of Ramkripal Meena v. Directorate of Enforcement SLP(Crl.) No. 3205 of 2024 dated 30.07.2024 was considering an applica....
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....ourt without being influenced by the dismissal of the earlier bail applications including the present judgment, however, it clarified that the observations made by the Court with regard to right to speedy trial would be taken into consideration. The liberty was also granted to the appellant to file an application for interim bail in case of ill-health and medical emergency due to illness of his wife. 41. A perusal of the impugned judgment and order would reveal that though the learned Single Judge of the High Court has dismissed the applications for bail on merits, on medical grounds, it has permitted the appellant to visit his residence to meet his wife in custody once every week. 42. It could thus clearly be seen that this Court expected the trial to be concluded within a period of 6-8 months. The liberty was reserved to approach afresh if the trial did not conclude within the period of 6-8 months. The liberty was also granted in case the trial proceeded at a snail's pace in next three months. 43. A perusal of the material placed on record would clearly reveal that far from the trial being concluded within a period of 6-8 months, it is even yet to commence. Though in the....
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....had not contributed to delay in proceedings or that the case has been proceeding at a snail's pace. However, in the very subsequent paragraph i.e., paragraph 80, the court observed that, in order to avoid any delay and considering the time being taken by the counsel for the accused in inspecting the "un-relied upon documents", it had vide order dated 18th April 2024 put a query to the prosecution if the entire "unrelied upon documents" can be provided to the accused persons in a digitized form. It further recorded that the ED accepted the suggestion that it would expedite the proceedings. However, some time was sought to consider the same. A perusal of the compliance report filed by the Assistant Director of ED dated 7th May 2024 which could be found at page 757 of the paperbook, would reveal that the Cyber Lab has informed that it would take 70-80 days to prepare one copy (cloning) of the data contained in the said unrelied digital devices. 46. It could further be seen that, though it has been submitted on behalf of the ED that hundreds of applications have been filed for supply of "un-relied upon documents", the record would not substantiate the said position. Though various a....
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....ssions of the learned Solicitor General, which were made on instructions, that the investigation would be concluded and final complaint/charge-sheet would be filed expeditiously and at any rate on or before 3rd July 2024. Accordingly, 8th charge-sheet has been filed on 28th June 2024 by the ED. It could thus be seen that, even according to the respondents, the investigation was to be concluded on or before 3rd July 2024. In that view of the matter, we find that the contention raised by the learned ASG is self-contradictory. If the investigation itself was to conclude on or before 3rd July 2024, the question is how could the trial have commenced prior to that? If the investigation itself was to conclude after a period of 8 months from the date of the first order of this Court, there was no question of the trial being concluded within a period of 6-8 months from the date of the first order of this Court. We find that both the High Court and the trial court have failed to take this into consideration. 49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right ....
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.... prisoner at trial."" 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception". 54. In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial....