Kusum Lata vs Union Of India Thru. The ...
2023 Latest Caselaw 2675 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 11
 

 
Case :- APPLICATION U/S 482 No. - 662 of 2023
 

 
Applicant :- Kusum Lata
 
Opposite Party :- Union Of India Thru. The Directorate Of Enforcement Lko.
 
Counsel for Applicant :- Pranjal Krishna
 
Counsel for Opposite Party :- Kuldeep Srivastava,Shiv P. Shukla
 

 
Hon'ble Rajesh Singh Chauhan,J.

Heard Sri Satish Chandra Mishra, learned Senior Advocate assisted by Sri Pranjal Krishna, learned counsel for the applicant, Sri Shiv P. Shukla, learned counsel for the Union of India and Sri Kuldeep Srivastava, learned counsel for the Enforcement Directorate.

By means of this application filed u/s 482 Cr.P.C. the learned counsel for the applicant has assailed the order dated 16.1.2023 passed by the Special Court, PMLA / Sessions Judge, Lucknow rejecting the bail application of the applicant on two grounds, firstly the said bail application has been filed after expiry of the interim protection being granted by the Hon'ble Apex Court; secondly on the ground that since the applicant has not appeared before the Court rather she was absent, therefore, such application is rejected.

Learned Senior Advocate has drawn attention of this Court towards Annexure no. 3 which is an order dated 7.9.2018 passed by the Apex Court in CRLMP No. 126050 of 2010 in Writ Petition (Criminal) No. 177 of 2018 (Kusum Lata vs. Union of India & Ors.), which reads as under :

"SPECIAL LEAVE PETITION (CRL.) NO. 3926 OF 2018

Learned Advocate appearing on behalf of the petitioner states that a Writ Petition has been filed in this Court challenging the vires of Rule 18(3) of the Allahabad High C Court Rules, 1952.

Accordingly, we dispose of the present Special Leave Petition in terms of our interim order dated 04.05.2018 granting bail, which will continue till the disposal of the aforesaid writ petition.

CRLMP NO. 126050/2018 IN WRIT PETITION (CRIMINAL) NO. 177 OF 2018:

A coordinate Bench of this Court has, in the case of relatives this petitioner, passed an order dated 11.07.2018. In terms of the said order, we allow the petitioner before us to appear before the Trial Court within two weeks from today.

The petitioner shall then be at liberty to file a bail application, which will be considered by the Trial Court forthwith. Even if the application is rejected, the petitioner shall not be arrested for a period of 30 days in order to enable her to approach the higher forum. The present application and the writ petition stand disposed of in the above terms."

Thereafter, the petitioner has been granted protection from this Court vide order dated 1.11.2018 in Crl. Misc. Bail Application No. 42101 of 2018 granting her interim bail. The order dated 1.11.2018 reads as under :

"Sri Parthiv K. Goswami and Sri O.P. Tripathi, learned counsel for the applicant, Sri Gyan Prakash, learned counsel appearing on behalf of Union of India.

Learned counsel for the applicant has drawn the attention of the Court towards para-15 of the petition in which the order passed by the Apex Court on 7.9.2018 has been mentioned. By the said order, the applicant, who is wife of main accused Yadav Singh was directed to surrender before the court below concerned. He submits that in pursuance of the said order of the Apex Court, the applicant surrendered before the court below on 15.9.2018 and moved a bail application which was rejected by the Special Court, Lucknow on the same day but there was an order of the Apex Court giving liberty to the applicant to approach the higher forum and in the meanwhile for a period of 30 days she shall not be arrested. He further submits that though the said period expired but the applicant moved a time extension application before the Apex Court and the Apex Court on 11.10.2018 has extended the interim protection given to her vide order dated 7.9.2018 for a period of further 30 days copy of which has been produced by learned counsel for the applicant which is taken on record. He has further drawn the attention of the Court regarding that the applicant be taken into custody in pursuance of the judgment of the Apex Court in the case of Sandeep Kumar Bafna vs. State of Maharashtra and another reported in (2014) 16 SCC 623. He submits that earlier when co-accused persons, who are daughter and son of the applicant and co-accused Yadav Singh had approached this Court their bail application was rejected by this Court observing that unless the accused are in judicial custody, their bail cannot be granted. The said accused approached the Apex Court by filing Special Leave to Appeal (Crl.) Nos. 3455-3456 of 2018 in which the Apex Court has passed an order on 19.4.2018 which was modified on 1.5.2018. The order dated 19.4.2018 passed by the Apex Court is quoted hereinbelow:-

"Upon hearing the counsel the Court made the following order.

The High Court has dismissed the bail application preferred by the petitioners on the ground that the petitioners have not been taken into custody and in the absence thereof, the application under section 439 Cr.P.C. would not be maintainable. Because of the aforesaid reason, the High Court has not gone into the merits of the application for bail submitted by the petitioners.

Learned counsel for the petitioners has drawn our attention to the application dated 15.3.2018 filed by the petitioners seeking bail. Paragraph 9 thereof reads as under:-

9. That, all the three applicants above named are present today, i.e., 15.3.2018 before this Hon'ble Court in terms of the order dated 14.3.2018 passed by Hon'ble Supreme Court in the common WP (Crl.) 59 of 2018 preferred by them under Article 32 of the Constitution of India.

It is clear from the above that there was a specific averment made in the applicant that the petitioners were present in the Court in terms of order dated 14.3.2018 passed by this Court. Therefore, it was permissible for the Court to treat the said averment as surrender by the petitioners and taken them into custody and then decide the application or bail. Learned counsel has shown judgment in Sandeep Kumar Bafna v. State of Maharashtra and Anr. [2014 16 SC 623] and clarifies that there was no inhibition to consider the applicant for bail on merits. We, thus, permit the petitioners to approach the High Court again and file an application on the same basis. It would be open to the High Court to treat the presence of the petitioners as surrender and taken them into custody and, thereupon, decide the application for bail, as well, simultaneously.

The interim order passed by this Court stands extended by two weeks or to the date of surrender, whichever is earlier.

The special leave petitions stand disposed of."

Hence, the applicant Kusum Lata, who has been identified by her counsel Sri Om Prakash Tripathi, has surrendered before this Court and is taken into custody.

Learned counsel for the applicant prays that taking into account her old age and ailments as she is suffering from various disease and kidney has been transplanted as has been mentioned in paras-4, 5, 6, 7 and 8, the applicant may be released on interim bail by this Court for which she is ready to abide by any condition imposed by this Court. He further undertakes that the applicant will co-operate with the trial which is said to be going before the trial court concerned.

Learned counsel appearing on behalf of Union of India could not dispute the arguments advanced by learned counsel for the applicant with respect to the order passed by the Apex Court 7.9.2018 as well as 19.4.2018 for hearing the bail application of the applicant. He submits that from a perusal of the bail application it is apparent that only medical ground has been taken for being considered for grant of bail to the applicant and there appears to be no averment made with respect to the merits of the case to which learned counsel for the applicant expressed his wishes to file a supplementary affidavit.

So far as ailment of the applicant is concerned, when query was made regarding the same as has been argued by learned counsel for the applicant from learned counsel appearing on behalf of Union of India he showed his inability about knowledge of the same.

Learned counsel for the applicant is granted four days' time to file supplementary affidavit and serve a copy of the same to learned counsel for the Union of India forthwith, who shall file a detailed counter affidavit by the next date fixed to the present bail application as well as to the supplementary affidavit to be filed by the learned counsel for the applicant.

Let the matter be listed on 19th November, 2018.

Taking into account that the applicant is an old lady and is suffering from various old age disease, we grant her interim bail at this stage with a direction that she shall remain present before this Court on the next date fixed.

Let the applicant, namely, Kusum Lata involved in Complaint Case No. 13 of 2017 arising out of ECIR/04/PMLA/LKZO/2015 dated 08.10.2015 under sections 3 read with 4 Prevention of Money Launderng Act, 2003 registered with Enforcement Directorate, Lucknow be released on interim bail on her furnishing a personal bond of Rs. 5 lacs with two sureties each in the like amount to the satisfaction of the Special Court, Lucknow.

The applicant is directed to co-operate with the trial which is said to be going on before the trial court concerned failing which interim bail granted to her shall automatically stands cancelled.

The Special Court, Lucknow shall ensure that if the applicant has any passport, the same shall be deposited and the applicant may not leave the country without the permission of this Court.

It is made clear that the applicant shall remain present before this Court on the next date fixed failing which coercive action shall be taken against her.

We further direct that the applicant shall appear before the C.M.O. Ghaziabad along with self attested copy of the memo of bail application along with its annexures on 5.11.2018, who shall constitute a Medical Board consisting of three expert doctors including two lady doctors to get the applicant medically examined regarding her ailment as has been mentioned in paras-4, 5, 6, 7 and 8 of the accompanying affidavit and submit a report to this Court by the next date fixed.

The Registrar General is directed to send a certified copy of this order to the trial court concerned forthwith for compliance/necessary information and further send a certified copy of this order to the Director General, Health U.P., who shall ensure that the report regarding the ailment of the applicant be submitted by the C.M.O. Ghaziabad before this Court by the next date fixed."

However, the aforesaid petition has been rejected vide order dated 18.12.2018 giving liberty to the present applicant to avail the remedy before the appropriate forum till 10.1.2019 making clear that if she does not surrender before the learned trial court on or before 10.1.2019 the benefit of this order shall not be provided to her. Annexure no. 7 is an order dated 10.1.2019 passed by the Apex Court in Special Leave to Appeal (Crl.) No(s). 322 -325/2019 (Kusum Lata vs. Central Bureau of Investigation) granting interim protection to the petitioner till the next date of listing. Further, vide order dated 7.12.2020 the Apex Court has passed the following order :

"In these matters, the petitioner was granted interim protection on 10.01.2019 and the matters have remained pending since then.

on 03.09.2821, the learned senior counsel for t sought time to file additional affidavit. The time prayed for was and the matters were posted on 20.09,2021.

on 20.09.2021, the matters were adjourned on the letter circulated by the learned counsel for the petitioner seeking adjournment due to personal difficulty of the instructing counsel Thereafter, the matters have appeared on the Board today.

Today again, a letter is circulated seeking adjournment on the same ground of "personal difficulty" of the instructing counsel. Taking note of the subject-matter. the past proceedings, and the observations occurring in the impugned order, we have declined the prayer for adjournment.

After having heard learned counsel for the petitioner and having perused the material placed on record, we are unable to find any infirmity in the impugned order dated 18.12.2018, whereby the High Court declined the prayer of pre-arrest bail of the petitioner. Learned counsel for the petitioner has submitted that the other accused persons in these matters have been granted bail different occasions. On being queried if any of the principal accused person had been granted the concession of pre-arrest bail in these matters, inter alia, involving the offences under Sections 1/4 of the Prevention of Money Laundering Act, the learned counsel for the petitioner frankly answered in the negative.

In any case, so far the impugned orders are concerned, we are satisfied that the High Court has rightly declined the prayer for pre-arrest bail of the petitioner, particularly looking to the nature of accusations. The grant of bail or even pre-arrest bail to any other accused will not enure to the benefit of the petitioner so far as the prayer for pre-arrest bail is concerned. Therefore, these petitions are required to be dismissed.

However, taking note of the overall circumstances, including that the petitioner is a lady in about 58 years of age, we deem it appropriate to provide that if the petitioner surrenders within a week from today and applies for regular bail, her bail plea may be considered by the Trial Court expeditiously and in priority. The interim protection granted to the petitioner shall one period a period of week or until continue for a the bail plea of the petitioner is considered by the Trial Court, whichever be the earlier.

It goes without saying that we have not commented on the merits of the case either way and all the aspects remain open for consideration by the Court concerned in accordance with law.

Subject to the observations foregoing, these petitions stand dismissed.

All pending applications also stand disposed of."

Learned counsel for the applicant has filed modification application of the order dated 7.12.2022 and the Apex Court vide order dated 16.12.2022 (Annexure no. 9) clarified the order and in place of 'surrender' before the learned trial court the Apex Court has directed that if the petitioner 'appears' before the learned trial court within four weeks from today and applies for regular bail her bail plea may be considered by the learned trial court expeditiously.

As per learned Senior Advocate the aforesaid period of four weeks (28 days) was expiring on 13.1.2023 and on that date the present applicant has filed her bail application before the learned trial court.

Learned trial court by means of order dated 16.1.2023 rejected the bail application of the present applicant. Learned Senior Advocate has stated that there is no dispute that such application was filed before the learned trial court within time stipulated by the Apex Court but on account of serious illness she could not appear before the learned trial court in person and she was under bonafide impression that when the Hon'ble Apex Court has modified its earlier order making clear that in place of surrender she may appear before the learned trial court so she could have appeared through counsel. In para 19 of the application the ailment of the present applicant has been indicated enclosing therewith the relevant medical documents. For the convenience para 19 of the writ petition is being reproduced herein below :

"19. That Ld. Judge did not consider the fact applicant participated in the investigation throughout and was never arrested. She is house wife, aged about 39 years suffering from multiple life threatening disease as her one infected kidney was removed in the year 2012 by surgery and she is having history of Arthritis, hyper tension, acute vertigo, acute urinary tract infection, nausea, reduced appetite and depression with panic attacks and remains under regular supervision and medical check up. She remained hospitalized from 06.06.2016 to 09.06.2016 due to severe depression and in the year 2017 she was admitted to NEO Hospital Noida from 10.08.2017 to 11.08.2017 and was diagnosed with acute vertigo and some other ailments which has been mentioned above. It is pertinent to mention here that applicant is not evading the trial proceedings instead she appeared before the Ld. Trial Court in compliance of the order of Hon'ble Supreme Court, however she could not appear in person because of her critical health. True copies of medical documents are being collectively annexed herewith as ANNEXURE NO. 12."

Learned Senior Advocate has submitted that in view of the trite law and as per the provisions of Cr.P.C. the present applicant should have appeared in person before the trial court when her bail application was to be disposed of, therefore, he has submitted that the present applicant may be given some short time to appear before the learned trial court by filing her fresh bail application and said bail application may be disposed of with expedition and considering her critical health condition, said application may be disposed of on the same date, if possible.

Per contra, Sri Shiv P. Shukla, learned counsel for the Union of India and Sri Kuldeep Srivastava, learned counsel for the Enforcement Directorate has stated that the present applicant has never appeared before the Court concerned from the very beginning and on the basis of protection being given to her by the Apex Court she avoided her appearance. Both the aforesaid counsel for the opposite parties have stated that there is no infirmity or illegality in the impugned order dated 16.1.2023 inasmuch as the impugned order is absolutely in the conformity of the settled proposition of law. Therefore, she is not entitled for any relief.

Be that as it may, considering the fact that the liberty of the present applicant has been protected by the Apex Court till 13.1.2023 as considered above, therefore, her non-appearance before the learned trial court on or before 13.1.2023 would not be considered as an illegality on her part. Further, when she filed her application for bail before the learned trial court on 13.1.2023 she should have appeared before the learned trial court inasmuch as if the applicant does not appear before the learned trial court in the present case, her bail application could have not been decided by the learned trial court. Her presence at the time of hearing and disposal of the bail application was required under the law, therefore, I do not find any infirmity, illegality or perversity in the impugned order dated 16.1.2023.

However, considering the ailments of the present applicant which has been indicated in para 19 of the application and such critical physical condition has been considered by this Court in earlier occasion and by the Apex Court, therefore, liberty is given to the present applicant to appear before the learned trial court within one week from today. To be more precise on or before 1.2.2023 and file her bail application. The said bail application shall be heard and disposed of expeditiously preferably on the same date, if possible.

It is further provided that the learned counsel for the applicant shall supply the advance copy of the bail application to the learned counsel for the opposite parties by 30.1.2023, so that the learned counsel for the opposite parties may seek instructions and may file objection, if so needed.

Till her appearance before the learned trial court in terms of this order or a period of one week from today i.e. on or before 1.2.2023, whichever is earlier no coercive action shall be taken against the present applicant. However, it is made clear that if the present applicant does not appear before the learned trial court within time stipulated, the benefit of this order shall not be available to her and the prosecution / investigating agency / trial court would be at liberty to take appropriate coercive steps against her strictly in accordance with law.

In view of the aforesaid terms, this application is disposed of.

.

(Rajesh Singh Chauhan, J.)

Order Date :- 25.1.2023

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