For Petitioner : Mr. Vijay Agrawal, Advocate (through
virtual mode) along with Mr. Mohit Kumar,
Advocate
For Respondent/ED : Dr. Saurabh Kumar Pande, Advocate
Hon'ble Shri Justice Ravindra Kumar Agrawal
C.A.V. Order
1. The present petition has been preferred under Section 528 of
Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order
dated 31.08.2024 (Annexure A/1), passed by learned Special Judge
Digitally
signed by
VEDPRAKASH (Prevention of Money Laundering Act)/4th Additional Sessions Judge,
DEWANGAN
Raipur, in ED Case No. 1 of 2024, whereby the learned trial Court
the applicant in the jail. The petitioner has prayed the following reliefs
AND
iv. Pass necessary orders and directions thereby
directing whenever physical meeting is there in the
Jail, the lawyers/legal advisors of the Petitioner be
permitted to meet him in a separate room of the Jail
Superintendent to discuss the legal strategy as to
pending cases and the Jail Authorities may be kept
beyond the hearing range but within visible distance.
AND
V. Pass necessary orders and directions thereby
whenever physical meeting is there in the Jail, the
Petitioner be permitted to meet his family members
physically in a separate room of the Jail
Superintendent.
AND
vi. Pass necessary orders and directions thereby
permitting the Petitioner to take along with him in jail
internet disabled laptop and/or iPad and related
devices viz. mouse, pen-drive, etc. containing
Prosecution Complaint(s), Original Applications, etc.
AND
vii. Pass any other order and directions as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
2. The brief facts of the case are that the ECIR bearing No.
RPZO/10/2022, dated 06.10.2022 and amended ECIR dated
02.09.2023 has been registered against the present petitioner and
other accused persons for the offence under Sections 3 and 4 of
Prevention of Money Laundering Act, 2002 (hereinafter called as
PMLA, 2002"). In the ECIR, it is alleged that about 6 FIRs have been
registered against the various accused persons for the offences of
Cheating and Criminal Conspiracy, which are the scheduled offences
under the PMLA, 2002. The said FIRs have been registered, whose
details are given herein below:
(i) FIR No. 112 of 2022, dated 30.03.2022, registered at Police
Station Mohan Nagar, District Durg for the offence under
Sections 120B and 420 of IPC,
(ii) FIR No. 206 of 2023, dated 02.06.2023 registered at Police
Station Cyber Crime, Vishakhapatnam Commissionerate,
Andhra Pradesh,
(iii) FIR No. 37 of 2023, dated 17.03.2023 registered at Police
Station Bhilai Bhatti, District Durg for the offence under
Section 420 of IPC,
(iv) FIR No. 86 of 2023, dated 27.02.2023 registered at Police
Station Chhavani, District Durg for the offence under Section
420 of IPC.
(v) FIR No. 336 of 2023, dated 10.08.2023 registered at Police
Station Gudhiyari, District Raipur for the offence under
Sections 420, 34 of IPC.
(vi) FIR No. 685 of 2023, dated 11.08.2023 registered at Police
Station Khamtarai, District Raipur for the offence under
Section 420 of IPC.
******* The Enforcement Directorate (in short 'ED') had filed the first
prosecution complaint on 20.10.2023 in the present ECIR under
Section 44 read with Section 45 of the PMLA, 2002 for the offence
under Section 3/4 of the PMLA, 2002 against 14 accused persons. In
the first ECIR, the present petitioner has not been made an accused.
On 01.01.2024, the ED filed a supplementary prosecution complaint
in the present ECIR against 5 accused persons, in which also the
present petitioner has not been arrayed as an accused. On the ECIR
submitted by the ED, the Learned Special Court took cognizance of
the offence and issued notices to the other accused persons, who
were not in custody, vide order dated 19.01.2024.
******* On 28.02.2024, at about 6:50 AM, the ED conducted search
and seizure proceedings in the residential premises of the petitioner
at AE Block, Sector-1, Salt Lake, Kolkata in the presence of the
petitioner. The search was continued till 4:50 AM on 29.02.2024 i.e.
almost about 24 hours and various Panchnamas were prepared
during the search. The said Panchnamas were also signed by the
present petitioner. On 29.02.2024, the petitioner was taken to the ED
office at Raipur along with the sister-in-law of the petitioner and at
Raipur, he was put up in the Ivy Hotel by the ED.
******* On 03.03.2024, the petitioner was formally arrested and was
produced before the learned Judicial Magistrate First Class, who was
the Remand Duty Magistrate and the ED sought custody of the
petitioner for further investigation. After the investigation, the
prosecution complaint has been filed against the petitioner and ED
case No. 1 of 2024 is registered by the learned Special Judge
(PMLA), Raipur.
******* During the proceeding of the ED case, the petitioner filed an
application on 14.08.2024 before the learned Special Court, Raipur,
seeking the following reliefs:
"In view of the aforesaid facts and circumstances, it is
respectfully prayed that this Hon'ble Court may be pleased
to:
a. Pass necessary orders and directions thereby
allowing the present application and directing the Jail
Authorities to have at least two legal calls of 45
minutes' duration every week with his lawyers for
each case by virtual mode in addition to present
physical mode.
b. To permit the applicant/accused to have two
audio/video calls of 30 minutes duration each per
week with his family members in addition to present
physical mode.
c. Pass necessary orders and directions thereby
whenever physical meeting is there in the Jail, the
lawyers/legal advisors of the Applicant be permitted
to meet him in a separate room of the Jail
Superintendent to discuss the legal strategy as to
pending cases and the Jail Authorities may be kept
beyond the hearing range but within visible distance.
d. Pass necessary orders and directions thereby
whenever physical meeting is there in the Jail, the
Applicant/Accused be permitted to meet his family
members physically in a separate room of the Jail
Superintendent.
e. Pass necessary orders and directions thereby
permitting the Applicant/Accused be permitted to take
along with him in jail internet disabled laptop and/or
iPad and related devices viz. mouse, pen-drive, etc.
containing Prosecution Complaint(s), Original
Applications, etc.
f. Pass any other order and directions as this Hon'ble
Court may deem fit and proper in the facts and
circumstances of the case."
In the application, the petitioner averred that the
respondent/ED has filed their main prosecution complaint having
8292 pages, the first supplementary prosecution complaint having
1936 pages, the second supplementary prosecution complaint
having 3093 pages and third supplementary prosecution complaint
was having 2601 pages, thus the entire prosecution complaint is
about 15922 pages. Total 98 witnesses have been cited. Presently,
the applicant is allowed to meet his counsel at Central Jail, Raipur for
a short time that too through a glass window and through telephone
twice a week. In such short period, he is unable to discuss the legal
strategy with his lawyer, particularly in view of the voluminous record
of the case. There are multiple companies involved in the case and
the respondent/ED freezing the accounts of the companies, which
pertains to the present petitioner, for which also he makes to discuss
at length with his lawyer as well as his family members. Further, to
maintain confidentiality, he requires a separate room to discuss about
the case as well as the other affairs of the companies with his lawyer
and family members. It is further averred in the application that in
such a voluminous record of the case, the petitioner is not able to
prepare notes for briefing to his counsel and to prepare the case for
his defence. The non-providing of the proper facilities to the petitioner
in the jail is violative of Articles 21 and 39-A of the Constitution of
India. The petitioner quoted various judgments passed by the
Hon'ble Supreme Court as well as the Bombay High Court in the
application and prayed for the aforementioned reliefs in the
application.
******* After hearing the parties, the learned Special Judge has
disposed of the application filed by the petitioner vide its order dated
31.08.2024 and directed the Jail Authorities to permit the petitioner
with his lawyer and family members under the provisions of jail
manual. It is also directed that the petitioner shall also be permitted
to meet his family members in the jail premises under the provisions
of jail manual. It is further directed that during the incarceration of the
petitioner, his prayer with respect to providing the laptop or i-pad
along with internet facilities and other connected devices shall be
considered by the Jail Superintendent under the provisions of jail
manual. The said order dated 31.08.2024 is under challenge in the
present petition.
3. Learned counsel for the petitioner would submit that the learned trial
Court has erred in passing the order dated 31.08.2024 by holding
that the reliefs claimed by the petitioner in the application shall be
considered by the Jail Superintendent under the provisions of jail
manual, which gave discretion to the Jail Superintendent to decide
the issue as raised by the petitioner. The learned trial Court should
have considered the rights of the petitioner, who is in judicial custody
since 11.03.2024 and instead of granting relief to the petitioner, the
discretion was given to the Jail Superintendent. The learned trial
Court should have considered the voluminous record and number of
witnesses, which needs a detailed discussion with his lawyer and to
prepare a note for himself to assist his lawyer in his defence, which is
not possible without having any electronic gadget having an internet
facility. Depriving from providing proper facilities to defend his case is
violative of Articles 21 and 39-A of the Constitution of India, as has
been held by the Hon'ble Supreme Court in the matter of "Asgar
Yusuf Mukadam and others v. State of Maharashtra and another"
2004 SCC Online Bom 1221.
He would further submit that the learned trial Court should also
have granted permission to meet the petitioner with his lawyer and
family members in a separate room to maintain confidentiality and
privacy. He may also be permitted to use laptop/i-pad and should
have directed the Jail Authorities to provide the said electronic
gadget having internet facilities to proper defend his case, as the
under-trial prisoner are also having their fundamental rights to
provide assistance to defend his case. The learned trial Court ought
to have considered that it would not be possible for anyone to make
notes from 15922 pages without any help of any electronic gadget
like laptop/i-pad. He would further submit that now a days, the
judiciary has already adopted video conferencing and an electronic
system of case management and to hearing cases through online
mode. In the prevailing practice, the present petitioner should also be
allowed to use the laptop/i-pad with related devices in the jail
premises. He would further submit that Rules 678, 684, 692, 693,
694 and 695 of the M.P./C.G. Prison Rules, 1968 provided
permission for interview: time limit for interviews; rules regarding
interview with under trials; rules regarding interview with unconvicted
prisoners and interview with legal advisers.
He would further submit that the petitioner deserves to be
permitted to have at least two calls of 45 minutes duration in every
week with his lawyer for each case in addition to their physical
meeting and further, he is entitled for two audio/video calls of 30
minutes duration in every week with his family members in addition to
their physical meeting. Considering the fact that the petitioner is in
custody since 03.03.2024, he is away from his family, including old-
aged parents, wife and two minor daughters. Relying upon the order
dated 20.04.2021 passed by the Bombay High Court in Suo-moto
Public Interest Litigation No. 1 of 2021 (High Court on its own motion
v. State of Maharashtra and others), he would submit that the
petitioner may be allowed to contact his family members twice a
week through audio/video conferencing.
He would also submit that the petitioner may also be permitted
to meet his lawyer in the jail premises in a separate chamber so that
they may discuss the legal strategy for the pending cases against the
petitioner, as their discussions are privileged. He would further
submit that it would not be possible to carry the entire part of the
challan with him in the meeting with his lawyer and to discuss it
across the glass window, therefore, instead of keeping the prayer at
the discretion of the Jail Authorities, the learned trial Court should
have granted the reliefs as claimed by the petitioner and by setting
aside the impugned order dated 31.08.2024, the relief, as claimed,
may be granted to him.
In support of his submissions, he would rely upon the
judgments passed by the Hon'ble Supreme Court in "Sunil Batra v.
Delhi Administration" AIR 1978 SC 1675, People's Union of
Democratic Rights v. Union of India, AIR 1982 SC 1473, Neelesh
Jain v. State of Rajasthan, 2006 Criminal Law Journal 2151.
4. Per contra, learned counsel for the respondent/ED vehemently
opposed the submissions made by learned counsel for the petitioner
and would submit that the investigation conducted by the ED
revealed that the present petitioner had full knowledge of the origin of
the proceeds of crime and yet he participated in these money
laundering. He with the association of co-accused Sourabh
Chandrakar, Harishankar Tibrewal and others had laundered these
proceeds of crime by using multiple companies operating both in
India and abroad. The petitioner willingly acted as the shareholder
and director in such entities employed in laundering the proceeds of
crime originating out of betting operations. The investigation further
revealed that the cash has been injected in the various companies
either directly or indirectly for investing it in the stock market and they
converted the cash to the bank entries. The present petitioner has
also assisted the co-accused Harishankar Tibrewal in layering the
illegal betting funds originating out of sky exchange and enjoyed the
proceeds of crime which emanated from illegal operation of Mahadev
Online Book.
He would further submit that the learned Special Court (PMLA)
Raipur vide its order dated 31.08.2024 has already directed Jail
Authorities to provide the required documents, electronic gadgets
and meeting with the family members as well as his lawyer as per the
jail manual and the claim of the petitioner is against the provisions of
jail manual. The Jail Authorities are already allowing the meeting with
his family members and lawyers as per the provisions of jail manual
and also providing him the required gadgets as per the jail manual.
No special treatment can be provided to the petitioner which is
against the jail manual. He would rely upon the order dated
16.02.2023 passed by Delhi High Court in Writ Petition (C) No. 2108
of 2020, C.M. Application No. 7418 of 2021 (Jai A. Dehadrai v.
Government of NCT of Delhi).
By further relying upon another judgment passed by the Delhi
High Court in the order dated 11.03.2024 passed in Bail Application
No. 795 of 2024 (Amanatullah Khan v. Directorate of
Enforcement) submits that the prayer of the petitioner is contrary to
the jail manual, and therefore, the same cannot be granted to the
petitioner and he also cannot claim any special treatment. He would
further submit that the petitioner definitely has the right to life and
liberty as provided under Article 21 of the Constitution of India, but it
does not give the right for special treatment in jail. It is also the fact
that everyone should be treated equally and no special treatment
should be given to any person in the eyes of rule of law. Therefore,
the petition does not have any merits and is liable to be dismissed.
5. I have heard learned counsel for the parties and perused the material
annexed with the petition.
6. The M.P./C.G. Prison Rules, 1968 stipulates certain provisions for
interview of the prisoner with his family members and legal advisor
and those rules are given herein below:
"नियम 678. कोई भी बंदी "अधीक्षक/उप अधीक्षक/सहायक
अधीक्षक ds vuqKk के विना साक्षात्कार करने के लिए अनुज्ञात नहीं
किया जाएगा (No prisoner to be allowed interview without
Superintendent/ Deputy Superintendent Assistant
Superintendent permission) (1) विचाराधीन सिद्धदोष vkSj
flfoy बंदी की उसकी परिवार के सदस्यों, मित्रों, रिश्तेदारों, विधिक
सलाहकारों और ln~Hkkoh lnL;ksa के साथ साक्षात्कार के लिए ऐसे
समय पर तथा ऐसे निबंधनों के अध्यधीन रहते हुए lE;d उपबंध
किए जाएं गे, जैसा कि अधीक्षक/उप अधीक्षक/सहायक अधीक्षक द्वारा
fofuf'pr किया जाए। ऐसे बंदी का साक्षात्कार उसके सद्भावी
विधिक सलाहकार के साथ fdUrq izHkkjh बंदी अधिकारी की दृष्टि के
सामने सुनवाई के भीतर होगा।
नियम 681. भेंट का स्थान (Place of interviews) प्रत्येक भेंट जेल
के किसी ऐसे विशेष स्थान पर की जायगी जो इस प्रयोजन के लिए
नियत किया जाए और यदि संभव हो तो ऐसा स्थान मुख्य द्वार पर
या उसके निकट ही हो।
परन्तु महिला कैदियों से भेंट, यदि संभव हो, तो महिलाओं के अहाते
में ही की जाएगी।
परन्तु यह भी, की यदि कोई कैदी गंभीर रूप से बीमार हो, तो
अधीक्षक/उप अधीक्षक/सहायक अधीक्षक चिकित्सालय में ही उससे
भेंट करने के लिए अनुज्ञात कर सकेंगे तथा मृत्युदण्ड के दण्ड से
दण्डित कैदी से भेंट साधारणतः उसकी कोठरी में ही की जाएगी।
परन्तु यह और भी कि अधीक्षक/उप अधीक्षक/सहायक अधीक्षक,
अभिलिखित किये जाने वाले विशेष कारणों से जेल के किसी भी भाग
में भेंट किया जाना अनुज्ञात कर सकेगा।
नियम 682. दण्डित कैदियों से जेल अधिकारी की उपस्थिति में ही
भेंट की जाएगी (Interviews with convicted prisoners to
take place in the presence of jail Officer)- दण्डित कैदी के
साथ की जाने वाले प्रत्येक भेंट जेल अधिकारी की उपस्थिति में की
जाएगी जो इस बात के लिए उत्तरदायी होगा कि कोई अनियमितता न
हो और जो ऐसे स्थान पर रहेगा जहां से कि वह यह देख सुन सकें
कि क्या हो रहा है और दोनों पक्षों के बीच किसी वस्तु के आदान-
प्रदान को रोक सकें।
नियम 684. भेंट के लिए समय सीमा (Time limit for
interviews)- HksaV ds लिए अनुज्ञात समय साधारणतः 20 मिनट से
अधिक नहीं होगा किन्तु v/kh{kd@mi&अधीक्षक@सहायक अधीक्षक
द्वारा स्वविवेकानुसार बढ़ाया जा सकेगा।
B- SPECIAL RULES RELATING TO UNDERTRIAL
AND CIVIL PRISONERS
नियम 692. सिविल तथा विचाराधीन कैदियों से भेंट करने संबंधी
निया (Rules regarding interview with civil and
undertrial prisoners) असिद्धदो दाण्डिक कैदियों तथा मिक्ति
कैदियों को अपने रिश्तेदारों, मित्रों और विधि सलाहकारों से में करने
या अन्यथा रूप से मौखिक या लिखित में पत्र-व्यवहार करने के लिए
उचित समयों तथा उचित निर्वन्धों के अधीन राहते हुए समस्त
युक्तियुक्त सुविधाए मंजूर को जयेगी (अधीक्षक/mi&अधीक्षक सहायक
अधीक्षक), विषम 695 में उपबंधित स्थिति के सिवाय असिद्धदोष
कैदी ds भेजे गये या उसके द्वारा भेजे जाने वाले तथा flfoy कैदी
}kjk भेजे जाने वाले किसी भी पत्र dks खोल सकेगा और उसकी
परीक्षा कर सकेगा तथा ऐसे किसी भी पत्र जी कि उसे vkifRrtud
प्रतीत हो तब तक रोक सकेगा जब तक की dSnh छोड़े जाने का
हकदार नहीं हो जाता यदि dSnh जेल में दरु ाचरण का दोषी हो, तो
अधीक्षक/उप अधीक्षक सहायक अधीक्षक) ऐसे i=ksa rFkk भेंटों को
जिनका विधिक कार्यवाही से संबंध हो अस्वीकृत कर सकेगा।
नियम 693, असिद्धदोष कैदियों से भेंट करने संबंधी नियम (Rules
regarding interview with unconvicted prisoners)
असिद्धदोष कैदी तथा विधिक सलाहकार ds बीच को प्रत्येक भेंट ,sls
स्थान पर होगी, जो दिखाई तो दे किन्तु जहां से कुछ सुनाई न
ns असिद्धदोष कैदों के किसी भी निकट के रिश्तेदार से भेंट के मामले
में भी अधीक्षक/उप अधीक्षक सहायक अधीक्षक द्वारा समान
fj;k;r अनुज्ञात की जा सकेगी।
नियम 694, विधिक सलाहकार से भेंट (Legal advisers
interview) कोई व्यक्ति असिद्धदोष दाण्डिक कैदी से कैदी के
विधिक सलाहकार की हैसियत से भेंट dks चाहे तो यह लिखित में
उसका नाम तथा पता देते हुए और यह कथन करते हुए कि यह fdl
व्यवसाय की किस शाखा से संबंधित है, आवेदन करेगा तथा
अधीक्षक/उप अधीक्षक/lgk;d अधीक्षक का इस बात से समाधान
करेगा कि वह उस कैदी का जिससे कि वह भेंट djuk चाहता है,
सद्भाविक विधिक सलाहकार है और यह कि उसका उससे उचित
कार्य है।
नियम 695. विधिक सलाहकार को संसूचना परिदत्त की tkus
(Communication to be delivered to the legal adviser)
असिद्धदोष दाण्डिक द्वारा तैयार की गई कोई भी सद्भाविक गोपनीय
लिखित संसूचना जो उसके विधिक सलाह को अनुदेशों के रूप में हो
अधीक्षक/उप अधीक्षक/सहायक अधीक्षक द्वारा उसको परीक्षा किए
बिना ऐसे विधिक सलाहकार को O;fDr'k% परिदत्त की जा सकेगी। इस
fu;e प्रयोजन के लिए अभिव्यक्ति विधिक सलाहकार से अभिप्रेत है,
एडवोकेट्स एक्ट (क्रमांक 25 सन् 1961 के) अर्थ के अन्तर्गत कोई
विधिक व्यवसायी।"
7. When the rules provide certain restrictions for meeting with the
prisoner with his family members and lawyer, the Jail Authorities are
bound to comply with the provisions and one cannot be permitted to
provide additional facilities against the rules. The claim of the
petitioner appears to be inappropriate for the reason that he is
claiming two calls of 45 minutes duration every week with his lawyer
for each case by virtual mode in addition to present physical mode,
two audio/video calls of 30 minutes duration every week with his
family members in addition to present physical mode, to provide a
separate room to meet with his lawyer/legal advisor to discuss the
legal strategy with respect to the pending cases and also to meet his
family members physically and further claimed that he should be
provided a laptop, which is not provided in the aforesaid prison rules.
When the rules do not provide for special treatment, he cannot claim
as a matter of right for the facilities during his detention in jail.
8. In the matter of "Amanatullah Khan" (supra), the Delhi High Court
has held in Para 77 of its order that :
"77. Undoubtedly, every such person as any other
citizen of India is entitled to the protection of law,
however, the law will also equally apply to him,
subject to any privilege if at all, in a case applicable
to him. Needless to say, the protection as per law
which is available to all citizens is also available to
such members and public figures. Their standing in
lives or being an elected representative of the people
does not create a class or elite class entitling them to
different treatment being extended under the same
law."
9. The learned trial Court has already directed the Jail Authorities to
provide the facilities as per his entitlement under the jail manual,
which cannot be said to be perverse or illegal. From the statement
made by the respondent/ED, it also comes on record that the Jail
Authorities are already allowing the meeting with his family members
and lawyer as per the jail manual. They also providing him the
required gadgets as per the jail manual and his physical presence
was allowed during every hearing of the case.
10. The facts and circumstances of the cases in the judgments cited by
learned counsel for the petitioner are different than the facts and
circumstances of the present case, as in the present case the
petitioner is claiming special facilities against the provisions of jail
manual/prison rules, which cannot be provided especially to the
petitioner against the jail manual. Further, the Asgar Yusuf
Mukadam's case (supra) relates to grant of basic needs to the
person to be detained in custody, but here, the petitioner is claiming
special facility of providing electronic gadgets, including all other
related components, therefore, no benefit can be extended to the
petitioner by the same.
11. For the foregoing reasons and also in view of the order passed by
the Delhi High Court in "Amanatullah Khan" (supra), I do not find
any ground to allow the petition and to direct the Jail Authorities to
provide the facilities as claimed by the petitioner in his application
filed before the learned trial Court on 14.08.2024.
12. In the result, the petition fails and is hereby dismissed.
Sd/-
(Ravindra Kumar Agrawal)
Judge
ved
