2025 (3) TMI 1665

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.... 1. These two Bail Applications are heard together since they arise out of the same crime being ECIR/MBZO-II/03/2020 under Sections 3 and 4 of MPID Act [Maharashtra Protection of Interest of Depositors (MPID) Act, 1999] based on FIR No. 26 of 2020 registered with Shivaji Nagar Police Station, Pune on 08.01.2020 under Sections 406, 408, 409, 420, 468, 471 and 34 of IPC [Indian Penal Code, 1860.]. 2. Applicant in Bail Application 4998 of 2024 is alleged to have defrauded investors by embezzling their funds. FIR came to be registered against the Applicant on 08.01.2020 he was arrested on 18.06.2021. After undergoing incarceration for a period of 20 months in connection with the FIR, Applicant was released on bail on 02.02.2023. On 21.08.2024, Applicant was again arrested, now in connection with the ECIR which arises out of the same FIR. 3. Applicant in Bail Application 5366 of 2024 is also indicted in the same FIR on similar allegations. He was arrested on 08.09.2021. After undergoing incarceration for a period of 18 months in connection with the FIR, Applicant was released on bail on 02.03.2024. On 06.09.2024, Applicant was again arrested, now in connection with the ECIR which....

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....ecutor while vehemently resisting both the Bail Applications of Applicants would restrict his submissions in a narrow compass. He would submit that the Court should consider the PMLA [Prevention of Money Laundering Act, 2002] offence as a distinct offence apart from the predicate offence even though it may arise out of the same offence because when juxtaposed with the predicate offence the offence under PMLA involves generation laundering of funds after the predicate offence is committed. He would submit that it would be inappropriate to seek Bail on the ground of long incarceration in the above circumstances based on the period of custody in connection with the predicate offence as it is distinctive in nature from the PMLA offence. He would persuade the Court to severe the period of custody in the predicate offence from that in the PMLA ECIR offence. He would therefore pray for rejection of bail. 8. I have heard the learned Advocates at the bar and with their able assistance, perused the record of the case. 9. Courts exercising jurisdiction under Section 439 have been conferred by certain powers. However these powers get restricted when there exists a non-obstante clause lik....

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....nd that socio economic balance of the society at large is not hampered under the garb of individual rights. It was with the intention to curb various kind of high risk menace in the society that such conditions were brought into the matrix. 12. In this regard, I would like to refer to the provisions of Section 45 of the PMLA which reads as under:- 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 [under this Act] shall be released on bail or on his own bond unless--] (i) the Public Prosecutor has been given a opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, 3[or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees] m....

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.... bail in some of such statutes start with a non-obstante Clause for overriding the provisions of Sections 437 to 439 of the Code of Criminal Procedure. The legislature has done so to secure the object of making the penal provisions in such enactments. For example, the PMLA provides for Section 45(1)(ii) as money laundering poses a serious threat not only to the country's financial system but also to its integrity and sovereignty. 25. Considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated. Moreover, such statutes contain provisions laying down higher threshold for the grant of bail. The expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail. Hence, the requirement of expeditious disposal of cases must be read into these statutes. 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)....

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....lthough it is contended that whether the incarceration in the predicate offence and PMLA offence is to be considered as a whole or in a vacuum. I deem that this is not a question that needs to be answered by this Court exercising its powers under Section 439. In the facts of the present case where the Applicants were in custody for a pronged period of time, the prosecution failed to perform its duty to initiate the investigation in the ECIR. Now that they have secured their liberty after undergoing the hard turmoil of litigation process, prosecution cannot be given a leeway to reclaim their liberty on the ground of their own lacking to start the investigation in time. As observed in the case of A.R. Antulay (Supra) the right to speedy trial flowing from Article 21 encompasses all stages of trial which are inclusive of investigation and there is no reason for Courts to take a restricted view. Applicants' appearance before the investigation agency can be taken care of by imposing appropriate conditions. 17. The learned PP has vehemently argued that the period of incarceration undergone by the Applicant under the PMLA offence is to be treated as distinct and separate from the perio....

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....ear back on 16.04.2023. It appears that only after the learned Special Judge granted regular bail to the appellant in the ED case on 20.06.2024 (which was stayed by the High Court on 21.06.2024 on oral mentioning) that CBI became active and sought for custody of the appellant which was granted by the learned Special Judge on 26.06.2024. Even on the date of his arrest by the CBI on 26.06.2024, appellant was not named as an accused by the CBI. Only in the last chargesheet filed by the CBI on 29.07.2024, appellant has been named as an accused." 20. In this context of the present case, what is crucial to be noted is that offence under the PMLA case emanates from the predicate offence leading to investigation by the ED under the PMLA. 21. In that view of the matter, I am not in agreement with the submissions made by the learned PP and APP that the period of sentence undergone by the Applicants under the predicate offence should be treated distinctly and separately apart from the period of sentence undergone under the PMLA offence. However prima facie from the record it is seen that both the Applicants are and have fully cooperated with the investigation. 22. In view of the abov....