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SHAGUFTA
SHAGUFTA Q PATHAN
Q PATHAN Date: 2-wp-2444-2022.doc
2022.07.28
11:05:23
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2444 OF 2022
Maiank Mehta ...Petitioner
Versus
Central Bureau of Investigation & Anr. ...Respondents
Mr. Amit Desai, Sr. Advocate a/w Mr. Manavendra Mishra,
Mr. Gopalkrishna Shenoy & Mr. Ishar i/b Sankalp Sharma, Ms. Pranjal
Aggarwal and Mr. Palash Bhatkoti for the Petitioner
Mr. Raja Thakare, Sr. Advocate a/w Mr. Kuldeep Patil, Mr. Siddharth
Jagushte and Mr. Akash Kavade for the Respondent No.1-CBI
Mrs. M. M. Deshmukh, A.P.P for the Respondent No.2-State
CORAM : REVATI MOHITE DERE &
SHARMILA U. DESHMUKH, JJ.
MONDAY. 25th JULY 2022 P.C. :
1 By this petition, the petitioner seeks the following reliefs :
"A) Issue a writ of mandamus, or any other appropriate writ, order or direction, laying down appropriate guidelines for protection of a person from his SQ Pathan 1/8 2-wp-2444-2022.doc summoning as an accused, arrest and criminal prosecution in connected scheduled offence, after he has been accepted as an "approver" by a competent authority of Union of India under PMLA and has been granted `pardon' by the competent Special Court taking cognizance of the offence of money laundering, in the light of the provisions of PMLA, CRPC, Articles 14, 20(3) and 21 of the Constitution of India, the public policy and precedents applicable in this regard;
B) Issue a writ of mandamus, or any other appropriate writ, order or direction, declaring that the Petitioner, being an `approver' of Union of India in ECIR/03/MBZO/2018 pursuant to grant of pardon by learned Special Court for offence of `money laundering' under section 3 of PMLA and having bound himself to make full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned in the commission thereof, cannot now be summoned as an `accused' and/or arrested and/or prosecuted, by Respondent No.1 in the connected scheduled offence in FIR being RCI(E)/2018/CBI/BS&FC/UMBAI;
C) Issuance of a writ or prohibition or a writ in the nature of prohibition or any other writ, order or direction, restraining the Respondent No.1 - CBI and its officers from arraying the Petitioner as an accused in connection with offences under FIR being RC 1(E)/2018/ CBI/BS&FC/MUMBAI;
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D) Issue a writ of mandamus, or any other appropriate writ, order or direction, directing the Respondent No.1(CBI) to refrain from taking any coercive step against the Petitioner herein in connection with the RC 1(E)/2018/CBI/BS&FC/MUMBAI."
2 Mr. Desai, learned senior counsel for the petitioner submits that the petitioner is the brother-in-law of Nirav Modi, an accused in a case registered by the Central Bureau of Investigation (`CBI') i.e. CBI Special Case No. 37/2018 as well as in the case registered by the Enforcement Directorate (`ED') case i.e. in ED Case No. ECIR/03/MBZO/2018. He submits that the petitioner is a resident of UK with a residency permit of Hong Kong. He submits that the petitioner was earlier arraigned as an accused by the Enforcement Directorate (`ED'), however, subsequently, was made an approver in the said case, after grant of pardon. According to Mr. Desai, the petitioner has cooperated with the investigation conducted by the ED and CBI, pursuant to which, he was granted pardon by the ED. He submits that once having been granted pardon by the ED, the CBI cannot arraign him as an accused, nor can the petitioner be SQ Pathan 3/8 2-wp-2444-2022.doc arrested or prosecuted by the respondent No.1-CBI. He further submits that the petitioner had cooperated with the CBI in its investigation and till June 2022, the CBI did not make the petitioner an accused nor disclosed its intentions to make the petitioner an accused. He submits that as the petitioner was desirous of going to Honk Kong, he filed an application before the learned Special Judge seeking permission to travel abroad, which application was not objected to by the ED, pursuant to which, the learned Judge permitted the petitioner to travel abroad. He submits that when the petitioner reached the airport, he was informed by the Immigration Authority that a Look Out Circular (`LOC') was issued as against him. Thereafter, the petitioner again applied before the Special Court and informed the learned Judge about having been stopped by the Immigration Authorities. He submits that the respondent No. 1 filed a reply on 30th June 2022 before the learned Judge, stating therein that they had decided to make the petitioner an accused in the CBI case and as such asked the Court not to permit the petitioner to travel. The learned Special Court, however, permitted the petitioner to travel. We SQ Pathan 4/8 2-wp-2444-2022.doc are informed that the said order has been challenged by the CBI in this Court, and that this Court has stayed the said order. 3 The main issue raised in the present petition is, whether the petitioner who has been granted pardon in the ED proceedings, can be made an accused by the CBI, on the basis of the same facts and allegations/material in the CBI case. Mr. Desai in this connection relied on several judgments and in particular on the judgments of the Apex Court in the Case of Dipesh Chandak vs. Union of India 1 in particular, paragraph 13 of the said judgment. Learned senior counsel has tendered a compilation of judgments in support of the said submission.
4 Mr. Thakare, learned Special Public Prosecutor submits that investigation cannot be interfered with, by the Court and that it is the prerogative of the investigating agency i.e. the CBI to conduct the investigation and to decide whether a person should be made an accused or not, depending on the evidence collected by them during 1 (2004) 8 SCC 511 SQ Pathan 5/8 2-wp-2444-2022.doc the course of investigation. He submits that the offence under the Prevention of Money Laundering Act (`PMLA') investigated by the ED and the offences under the IPC and Prevention of Corruption Act investigated by the CBI are distinct and separate. He submits that although under Section 44 of the PMLA, the case will be conducted before the same Judge/same Court, however, the cases will be conducted separately. He further submits that the ED, after conducting a detailed investigation, has filed a charge-sheet in the said case as well as supplementary charge-sheet, after which pardon was granted to the petitioner by the ED. As far as investigation by CBI i.e. respondent No. 1 is concerned, he submits that the investigation is in progress. He submits that the CBI is yet to come to a conclusion as to whether the petitioner is to be made an accused or whether a 169 report would be filed as against the petitioner or whether the petitioner would be granted pardon. Mr. Thakare, submits that at this stage, he is unable to make any statement as to whether the petitioner would be made an accused, as investigation in the case is in progress. Hence, according to Mr. Thakare, the petition is premature.
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5 Having regard to the issue raised by the petitioner as stated
aforesaid and the reliefs sought, issue notice to the respondents, returnable on 22nd August 2022. Mr. Thakare waives notice on behalf of the respondent No.1-CBI. In addition to Court notice, petitioner to serve the respondent No.2 by Advocate's notice and file an affidavit of service before the returnable date.
6 Considering the submission advanced by Mr. Thakare, learned Special Public Prosecutor for the CBI, that investigation is in progress and that at this stage, he is unable to make a statement whether the petitioner can be made an accused or not, we deem it appropriate to pass the following interim order :
(i) We direct the petitioner to attend to the summons issued by the respondent No. 1-CBI. The said summons to be served on the petitioner at least 48 hours in advance, so as to enable the petitioner to appear before the said Authority.
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(ii) In the meantime, till the next date, no coercive steps
to be taken as against the petitioner in connection with RC 1(E)/ 2018/CBI/BS&FC/MUMBAI, till the next date.
7 Stand over to 22nd August 2022.
8 All concerned to act on the authenticated copy of this
order.
SHARMILA U. DESHMUKH, J. REVATI MOHITE DERE, J.
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