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2024 (10) TMI 1550
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.... are also similar, the applications are being decided by way of a common judgement. 3. Learned Senior Counsels appearing on behalf of the applicants, at the outset, concede that the applications are not pressed on merits however, at the same time the right to life and liberty of the applicants, who have been in custody since 24 months and 25 months respectively, has been severely hampered on account of the delay in the commencement of trial for reasons which are not attributable to them. It is submitted that while usually the case is that parameters of Section 45 of Prevention of Money Laundering Act, 2002 (hereafter, PMLA) must be met, but where the system is not able to demonstrate that the trial would conclude in a reasonable amount of time and the incarceration is long, the same would override the consideration under Section 45 of PMLA. 4. It is submitted that both the applicants were arrested on 30.06.2022. They were released on interim bails on different occasions, a concession which they have not misused. It is stated that while Vaibhav Jain was released on interim bail from 18.08.2023 to 27.12.2023 on account of the illness of his mother, Ankush Jain was released on i....
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....ll the accused persons who sought repeated adjournments. It is next contended that the bail applications having been already rejected on merits, the only option available with the applicants is to seek the same on completions of the period of incarceration stipulated under Section 436A Cr.P.C. On the aspect of further investigation, learned Special Counsel submits that as of now, no further investigation is being conducted. However, on a specific query, Mr Hossain states that there is a possibility of respondent filing a supplementary complaint if in the supplementary challan to be filed by CBI, any further proceeds of crime are detected. 9. Opposing the applicants' claim of seeking parity with the main accused, learned Special Counsel submits that Trial Court while granting bail to the main accused i.e., Satyendra Jain on 18.10.2024 failed to appreciate that repeated adjournments were taken which contributed to the delay in the commencement of trial. Lastly, it is submitted that the applicants' also cannot seek benefit of the decision in Manish Sisodia (Supra) as the fact situation in the said case was different as there are lesser numbers of accused, witness and documents. ....
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.... crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of the trial of the offence under Section 3 of PMLA can be proved only if the scheduled offence is established in the prosecution of the scheduled offence. Therefore, even if the trial of the case under the PMLA proceeds, it cannot be finally decided unless the trial of scheduled offences concludes. In the facts of the case, there is no possibility of the trial of the scheduled offences commencing in the near future. Therefore, we see no possibility of both trials concluding within a few years. 25...Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well settled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception." These stringent provisions regarding the grant of bail, such as Section 45 (1) (iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time. xxx 27. ....
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....A can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary." (emphasis added) 13. The issue of long incarceration and right of speedy trial also cropped up in Manish Sisodia v Directorate of Enforcement Manish Sisodia v Directorate of Enforcement, reported as 2024 SCC OnLine SC 1920, wherein it has been held by the Supreme Court that the right to bail in cases of delay in trial, coupled with long period of incarceration would have to be read into the Section 439 CrPC as well as Section 45 of PMLA while interpreting the said provisions. 37. Insofar as the contention of the learned ASG that since the conditions as provided under Section 45 of the PMLA are not satisfied, the appellant is not entitled to grant of bail is concerned, it will be apposite to refer to the first order of this Court. No doubt that this Court in its first....
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.... incarceration should not be prolonged on that account. The relevant extract of the said judgement is enacted below for convenience:- "11....All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, "bail is the rule and jail is the exception" is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied. 12. Independently and as has been emphatically reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena v. Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) and Jave....
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.... understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict." (emphasis added) 15. The view taken in the Manish Sisodia and Prem Prakash cases (Supra) was reiterated recently by the Supreme Court in the case of Vijay Nair v. Directorate of Enforcement decided on 02.09.2024 in SLP (Crl) Diary No. 22137/2024, where it was held that liberty guaranteed under Article 21 of the Constitution does not get abrogated. It was held that:- 12. Here the accused is lodged in jail for a considerable period and there is little possibility of trial reaching finality in the near future. The liberty guaranteed under Article 21 of the Constitution does not get abrogated even for special statutes where the threshold twin bar is provided and such statutes, in our opinion, cannot carve out an exception to the principle of bail being the rule and jail being the exception. The cardinal principle of bail being the rule and jail being the exception will be entirely defeated if the petitioner is kept in custody as an under-trial for such a long duration. This is particularly glaring since in t....
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....teed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39], it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail. 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D( 5) of the UAPA per se ....
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.... of Odisha 2023 SCC OnLine SC 1109 and Man Mandal and Anr. v. State of West Bengal 2023 SCC OnLine SC 1868, wherein while taking into account the prolonged custody and unlikelihood of completion of trial in immediate future, the accused was granted bail. 18. The predicate offence was investigated by the Central Bureau of Investigation (CBI, AC-1) which culminated into filing of FIR No. RC-AC-1-2017-A0005 dated 24.08.2017 under Section 109 IPC and Sections 13(2) r/w 13(1)(e) of Prevention of Corruption Act,1988. CBI filed the chargesheet without arrest. On basis of scheduled offence, the present ECIR came to be registered on 30.08.2017. The applicants were arrested on 30.06.2022 and the prosecution complaint came to be filed on 27.07.2022. The prosecution has named 10 accused persons and cited 108 witnesses. There are 5172 pages of documents which need to be analysed. Moreover, it is noted that the Trial is still at the stage of arguments on charge. In addition, this Court has also been informed that the Presiding Officer of the Trial Court hearing the matter on charge has demitted office on 30.09.2024 and a replacement has not yet been appointed to take over the said Court. T....
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....he CBI is still pending, there is no possibility of the trial commencing, let alone concluding in the predicate offence in the foreseeable future and consequently, the present case under the PMLA also cannot be finally determined and would inevitably be delayed due to the lack of progress of the trial in the predicate offence. In this regard, the Court deems it apposite to refer to the decision of Supreme Court in the case of Senthil (Supra), wherein the Court has held that the trial of the case under PMLA cannot be finally decided unless the trial of scheduled offence proceeds, since the existence of the scheduled offence would have to be established in the trial under PMLA. The relevant extract is reproduced below:- "21. Hence, the existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of the trial of the offence under Section 3 of PMLA can be proved only if the scheduled offence is established in the prosecution of t....