Delhi High Court
Malvinder Mohan Singh vs State & Anr. on 15 May, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 814/2020
Judgment reserved on : 15.05.2020
Date of decision : 15.05.2020
MALVINDER MOHAN SINGH ..... Petitioner
Through: Mr. Mukul Rohatgi, Sr. Adv.
with Mr. Kailash Vasdev, Ms.
Neoma Vasdev, Advs.
versus
STATE & ANR. ..... Respondents
Through: Mr. Rahul Mehra, Senior
Standing Counsel with Mr.
Chaitanya Gosain, Adv.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
JUDGMENT
ANU MALHOTRA, J.
CRL.M.A. 6440/2020
1. This is an application filed by the petitioner under Article 226
of the Constitution r/w Section 482 of the Cr.PC, 1973 seeking urgent
relief seeking that the minutes of the meeting of the Hon'ble High
Powered Committee of this Court held on 28.03.2020 be stayed and
the respondent be directed to release the petitioner on bail/ parole on
such terms and conditions as the Court may consider appropriate.
2. As per averments in the FIR No.50/2019, PS EOW, Mandir
Marg, the petitioner along with Mr. Shivinder Mohan Singh as being
the promoter of M/s Religare Enterprises Limited (hereinafter referred
as REL) is alleged to have played a significant role in the
management and conduct of affairs of Religare Finvest Limited
(hereinafter referred as RFL) a subsidiary of REL, a public company
listed on stock exchanges and licensed by the Reserve Bank of India to
undertake the business of financial services as a non-deposit taking/
lending Non-Banking Financial Company (NBFC) which operated as
a small and medium enterprise (SME) financing focussed NBFC and
was in the business of extending SME working capital loans, secure
SME business expansion loans, short term trade finance and other
loans to various entities with it being submitted that the RFL is
classified as a systematically important NBFC by the RBI.
3. The petitioner herein along with Mr. Shivinder Mohan Singh
allegedly in conspiracy with Mr. Sunil Godhwani, Executive Director
of RFL is alleged to have forged documents to secure high value
purported loans to shell companies and related known entities of the
petitioner and of Mr. Shivinder Mohan Singh and such loans were
given by RFL on the sole and express basis that these entities were
known to the petitioner and Mr. Shivinder Mohan Singh and thus
pursuant to instructions received from the petitioner and Mr. Shivinder
Mohan Singh or Mr. Sunil Godhwani, an alleged co-conspirator their
agents/ nominees/ associates, sums to the tune of hundreds of crores
were allegedly disbursed by the RFL at very short notice and at times
without adequate documentation for the same and it is alleged that in
many such instances, the documentation was created only
subsequently and antedated and thus forged.
4. The allegations levelled against the petitioner are to the effect
that an amount of Rs.2397 crores as principal amount and Rs.415
crores as the interest amount had been loaned out to entities who never
intended to repay these purported loans to RFL and defaulted on their
obligations simultaneously with the exit of the present petitioner and
Mr. Shivinder Mohan Singh from REL.
5. It has been alleged in the complaint filed by the Directorate of
Enforcement that some such loans were learnt to have been extended
to entities which appear to be eventually controlled by the promoters
of the REL and entities which were known to and controlled by Mr.
Narender Kumar Goushal, a long time associate of the promoters. The
complainant i.e. the Directorate of Enforcement vide its complaint
dated 10.01.2020 under Sections 44/45 of the Prevention of Money
Laundering Act, 2002 qua the alleged commission of offences
punishable under Section 3 r/w Section 70, punishable under Section 4
of the PMLA Act, 2002 has thus alleged that the present petitioner and
Mr. Shivinder Mohan Singh and Mr. Sunil Godhwani in collusion
with Mr. Narender Kumar Goushal by abusing their position caused
the RFL to enter into transactions whereby public moneys were
transferred to shell companies/ suspicious entities and siphoned away.
It has also been alleged that the present petitioner and Mr. Shivinder
Mohan Singh and Mr. Sunil Godhwani by concealing facts and
abusing their position caused RFL to lend money to entities owned
and controlled by them and Mr. Narender Kumar Goushal (directly or
indirectly) with no intention of ever returning the said money(s) and
that the said acts and omissions on behalf of the present petitioner and
Mr. Shivinder Mohan Singh, Mr. Sunil Godhwani and their officials/
associates including Mr. Narender Kumar Goushal who abused their
position in REL and the RFL have greatly hampered the interests of
the public shareholders of REL.
6. As per the complaint filed by the Directorate of Enforcement,
the petitioner is allegedly involved in acquisition and utilization of
proceeds of crime generated out of the criminal activity and its
projection as untainted property and has thus committed an offence of
money laundering in terms of Section 3 of the PMLA Act, 2002.
7. Without adverting to the merits or demerits of the allegations
that have been levelled against the petitioner herein, it is essential to
observe that it was submitted on behalf of the petitioner that in view of
the verdict of the Hon'ble Supreme Court in Suo Moto Writ Petition
(C) No.1/2020 in Re: Contagion of Covid-19 Virus in Prisons, the
Hon'ble Supreme Court has observed that the issue of overcrowding
of prisons is a matter of serious concern particularly in the present
context of the pandemic of Coronavirus (COVID-19) and that it had
become imperative to ensure that the spread of Corona Virus within
the prisons was controlled having regard to the provisions of Section
21 of the Constitution of India. It was thus submitted that the Hon'ble
Supreme Court vide the said verdict dated 23.03.2020 thus directed to
the effect:
"We direct that each State/Union Territory shall
constitute a High Powered Committee comprising of (i)
Chairman of the State Legal Services Committee, (ii) the
Principal Secretary (Home/Prison) by whatever
designation is known as, (ii) Director General of
Prison(s), to determine which class of prisoners can be
released on parole or an interim bail for such period as
may be thought appropriate. For instance, the State/Union
Territory could consider the release of prisoners who have
been convicted or are undertrial for offences for which
prescribed punishment is up to 7 years or less, with or
without fine and the prisoner has been convicted for a
lesser number of years than the maximum.
It is made clear that we leave it open for the High
Powered Committee to determine the category of
prisoners who should be released as aforesaid, depending
upon the nature of offence, the number of years to which
he or she has been sentenced or the severity of the offence
with which he/she is charged with and is facing trial or
any other relevant factor, which the Committee may
consider appropriate.
The High Powered Committee shall take into
account the directions contained in para no.11 in Arnesh
Kumar v. State of Bihar, (2014) 8 SCC 273."
8. The petitioner has thus submitted that he seeks his urgent
release from the prison in as much as there are several inmates lodged
in the prison with grim prison facilities and that there are three under
trial prisoners quarantined at the Tihar Jail in as much as one of the
persons had come in contact with the victim who tested positive for
COVID-19 and that the apprehension of the petitioner of contracting
COVID-19 is reasonable and well founded. The petitioner further
submits that the offences alleged against him are in the nature of an
economic offence arising from and pertaining to an international
arbitration award from which proceedings pending appeal in Court of
competent jurisdiction outside India and that charge sheets have
already been filed in all cases and that the petitioner has deep roots in
society and that the petitioner is also suffering from several ailments
and that he be thus released on interim bail/ parole. It was further
submitted on behalf of the petitioner that he has been incarcerated for
eight months and in view of the guidelines laid down by the Hon'ble
Supreme Court in Sanjay Chandra vs. CBI AIR2012SC830, he
cannot be penalized any further without culmination of the trial.
9. The petitioner has further submitted that the guidelines made by
the Hon'ble High Powered Committee of this Court on 28.03.2020
vide which it has been stipulated to the effect:
"ITEM NO.3:- DETERMINING FRESH CATEGORY
OF UNDER TRIAL PRISONERS WHO CAN BE
RELEASED ON INTERIM BAIL':
-
Kanwal Jeet Arora, Member Secretary informed the
Committee, that immediately on receipt of letter from
Govt. of NCT of Delhi regarding formation of present
Committee, he on being directed by Hon'ble Chairperson
had requested D.G.(Prisons) through the letter dated
26.03.2020 to furnish requisite information for the impact
analysis on the proposed relaxed criterion of under trial
prisoners. The same is accordingly submitted.
The Members of the Committee discussed and deliberated
upon the proposed category of prisoners, who may now
be considered for grant of interim bail for 45 days in view
of the circumstances in which we are in preferably on
'Personal Bond':-
(i) Under trial prisoners (UTPs) who are facing trial in a
case which prescribes a maximum sentence of 7 years or
less; or
(ii) Even If , the UTP has more than one case and in all
other cases, he is "on bail", except the one for which he
is being considered and the same prescribes punishment
for 7 years or less; and if
(iii) UTP is in custody for a period of one month or more;
(iv) In case of Women UTP, if she is in custody for a
period of 15 days or more;
Besides the UTPs falling in above categories, those
inmates who are undergoing Civil Imprisonment can also
be considered for 'interim bail' of 45 days.
It has further been resolved that following category of
UTPs, even if falling in the above criterion, should not
be considered:-
(i) All inmates who are undergoing trial for
intermediary/large quantity recovery under NDPS Act;
(ii) Those under trial prisoners who are facing trial under
Section 4 &6 of POCSO Act;
(iii) Those under trial prisoners who are facing trial for
offences under section 376, 376A, 376B, 376C, 376D and
376E and Acid Attack;
(iv) Those UTPs who are foreign nationals;
and
(v) Those under trial prisoners who are facing trial
under Prevention of Corruption Act (PC Act)/ PMLA ;
and
(vi) Cases investigated by CBI/ED/NIA/Special Cell
Police and Terror related Cases, cases under Anti-
National Activities and Unlawful Activities(Prevention)
Act etc."
to the effect inter alia that persons facing trial under the PMLA do not
fall within the category of UTPs who may be released on interim bail
due to COVID-19 are arbitrary and that the same does not fall within
the contours of the order dated 23.03.2020 of the Hon'ble Supreme
Court in Suit Moto Writ Petition (C) No.1/2020. A further submission
made on behalf of the petitioner is to the effect that the said guidelines
are wholly arbitrary and that the same is an irrational classification of
persons in judicial custody infringing thus the rights of the petitioner
who is immune compromised and is likely to be adversely affected by
it if he contracts the fatal Coronavirus.
10. It is further submitted on behalf of the petitioner that he has
been suffering from acute attacks of Gastroenteritis and haemorrhoids
which were infected.
11. On behalf of the State it was submitted by the learned Standing
Counsel for the State Mr. Rahul Mehra that the prayer made by the
petitioner seeking grant of interim bail/ parole cannot be considered by
this Court in view of the minutes of meeting of the Hon'ble High
Powered Committee dated 28.03.2020 in as much as the case of the
petitioner specifically falls within the domain of alleged commission
of economic offences and thus he is not entitled to be released on
parole/ interim bail despite the prevailing pandemic. It was further
submitted on behalf of the State placing reliance on the status report
dated 15.05.2020 submitted by the Superintendent Jail, Central Jail
No.8/9, Tihar Jail, Delhi to the effect that the petitioner herein is
lodged in the Tihar Jail in the cases i.e.
1. ECIR/05/DLZO-II/2019, FIR No. 50/19, US-
409/420/120B IPC PS- EOW/SEC-VI, New Delhi,
NDOH- 20.05.2020.
2. ECIR/DLZOII/05/2019, CC No.01/20, Titled as
Directorate of Enforcement Vs Malvinder Mohan Singh
etc, NDOH- 20.05.2020.
3. FIR No. 189/19, US- 409/420/120B IPC, PS- EOW,
NDOH-20.05.2020."
and that the said status report indicates that at present the general
condition of the petitioner is stable and all prescribed medications are
being provided to him from the Jail Dispensary itself. The details of
the said medical status report dated 15.05.2020 are to the effect:
"Sub: Medical status report of inmate Malvinder Mohan
Singh S/o Dr. Parvinder Singh.
With reference to subject cited above, as per
available medical records this is to inform you that the
above mentioned inmate is lodged at Central Jail-8/9 since
17.10.2019. On the same day medical examination was
done, he gave no fresh complaint, no history of chronic
illness, no history of any drug abuse. On examination he
was conscious and oriented, vitals stable and systemic
examinations were within normal limit. On local
examination there was no fresh external injury seen.
The inmate patient has been visited at Dispensary
Central Jail No.8/9 for the complaints of loose motion,
cough with expectoration, Low Backache with bilateral
shoulder pain, he was examined on all the occasions and
advised medications accordingly.
On 30.11.2019, 14.10.2019, 11.01.2020, 18.01.2020,
22.02.2020, 18.04.2020, 25.04.2020, 09.05.2020 inmate
patient was reviewed by jail visiting SR Dermatology as
case of tenia cruris (rash with irritation in groin region), he
was examined and advised medications accordingly.
On 30.11.2019, 14.12.2019, 11.01.2020, 18.04.2020,
25.04.2020, 09.05.2020, inmate patient was reviewed by jail
visiting SR Orthopedic as a follow up case of Low Backache
with radiculopathy, Neck pain, B/L shoulder pain with B/L
knee pain, he has been examined and advised Physiotherapy
& medications accordingly.
On 30.03.2020 inmate patient was reviewed by jail
visiting SR Medicine for the complaint of Loose stools, pain
on defecation, congestion in chest, pain in gums, orthostatic
hypotension and alleged history of fissure in ano with
history of left knee arthroscopy, he has been examined and
advised RBS Charting and medications accordingly and
also advised to review with old medical report.
On 08.04.2020 inmate patient was reviewed by jail
visiting SR Ophthalmology as a case of refractive error with
presbyopia, he was examined and advised to wear
prescribed bifocal glasses.
On 09.04.2020 inmate patient was reviewed by jail
visiting SR Medicine as a case of recently detected DM-II
on the basis of RBS Charting, HbA1c-6.4% and history of
hypothyroidism, he was examined and advised blood
investigations and blood investigations accordingly
On 20.04.2020, 27.04.2020, inmate patient was
reviewed by jail visiting SR Medicine as a case of DM-II
with hypothyroidism and complaint of constipation, no
bleeding manifestation and urinary incontinence he was
examined and advised blood investigations and medications
accordingly. Blood investigations were done on 21.04.2020
which reveals TSH-6.94 iu/ml.
On 27.04.2020, 11.05.2020 inmate patient was
reviewed by Jail Visiting SR ENT for his complaint of
Vertigo and nasal blockage, he has been examined and
advised medications accordingly.
On 11.05.2020 inmate patient was reviewed by jail
visiting SR Medicine for his complaint of rash with
irritation in groin region with excessive sweating and
alleged history of arthroscopy left knee, he was examined
and advised medications accordingly.
On 14.05.2020 inmate patient was reviewed by jail
visiting SR Medicine as a case of Dm-II with
hypothyroidism with fissure in ano, he was examined, on
examination RBS-115mg/dl, BP-114/70mm/hg and advised
ECG and medications accordingly and also advised to
review SR Surgery.
At present, the general condition of inmate is stable.
All prescribed medications are being provided to him from
Jail Dispensary itself.
This is for your kind information and onwards
submission of the Hon'ble High Court."
12. It was further submitted on behalf of the State by the learned
senior Standing Counsel Mr. Rahul Mehra that the petitioner is
virtually in isolation in Central Jail No.8/9 at the Tihar Jail, New Delhi
and is not in contact with any other inmate and thus clearly social
distancing is being observed and maintained.
13. Reliance was also placed on behalf of the State by the learned
senior Standing Counsel on proceedings dated 06.04.2020 in
W.P.(CRL.)-URGENT 10/2020 of this Court wherein the prayer made
by Mr. Shivinder Mohan Singh, the other co-promoter of REL, a co-
accused in the instant case seeking grant of interim bail was declined
with it having been observed that the said accused was involved in an
offence punishable for more than 7 years of sentence and in more than
one case and that too under the PMLA Act and that he does not
qualify to be released pursuant to directions of the Hon'ble High
Powered Committee dated 28.03.2020.
14. Reliance was also placed on behalf of the applicant/ petitioner
on a catena of verdicts i.e. the verdicts of this Court in Anil Mahajan
Vs. Commissioner of Customs and Ors. 2000III AD (Delhi) 369,
Arvind Yadav vs. Govt. Of NCT of Delhi in BAIL APPLICATION
778/2020, Babu Lal vs. State (N.C.T. OF DELHI) in CRL.A.
291/2020, H.B. Chaturvedi vs. CBI 2011IAD(Delhi)447, Dr.
Shivender Mohan Singh (IN J.C.) vs. State of NCT of Delhi & Ors.
in W.P.(CRL.)-URGENT 10/2020 and the verdict of the Hon'ble
Supreme Court in Ashok Dhingra Vs. N.C.T. of Delhi (2000) 9 SCC
533, P. Chidambaram vs. Directorate of Enforcement in Criminal
Appeal No.1831/2019, Kishan Khubchand Korani & ANR. vs. The
State of Gujarat & Anr. in Criminal Appeal No(s). 859/2018, Mohan
Singh, Advocate vs. Union Territory, Chandigarh (1978) 2 SCC
366, Prem Shankar Shukla vs. Delhi Administration (1980) 3 SCC
526, Sanjay Chandra VS. Central Bureau of Investigation (2012) 1
SCC 40, Capt. Satish Kumar Sharma vs. Delhi Administration and
Others. In Criminal Writ No.265/90, SMD Kiran Pasha vs.
Government of Andhra Pradesh and Others (1990) 1 SCC 328 to
contend to the effect that the petitioner be released on interim bail/
parole. It is essential to observe that the facts and circumstances of the
said case relied upon on behalf of the petitioner are distinguishable
from the facts and circumstances of the present case and are not in
pari materia with the facts of the instant case.
15. It is essential to observe that vide minutes of meeting dated
18.04.2020 i.e. after the meeting dated 28.03.2020, the Hon'ble High
Powered Committee of this Court has reiterated to the effect:
"It has further been resolved that following category of
UTPs, even if falling in the above criterion, should not be
considered :-
(i)Those inmates who are undergoing trial for
intermediary/ large quantity recovery under NDPS Act ;
(ii) Those under trial prisoners who are facing trial under
Section 4 & 6 of POCSO Act;
(iii) Those under trial prisoners who are facing trial for
offences under section 376, 376A, 376B, 376C, 376D and
376E and Acid Attack;
(iv) Those UTPs who are foreign nationals ;
(v) Those under trial prisoners who are facing trial under
Prevention of Corruption Act (PC Act) / PMLA, MCOCA
;
and
(vi) Cases investigated by CBI/ED/NIA/Special Cell of
Delhi Police, Crime Branch, SFIO, Terror related Cases,
cases under Anti-National Activities and Unlawful
Activities (Prevention) Act etc."
16. It is essential to observe that during the course the hearing of
the present proceedings, it was suo moto by this Court brought to the
notice of both the learned Senior counsel for the petitioner Mr. Mukul
Rohatgi and learned Senior Standing Counsel for the State Mr. Rahul
Mehra that in Writ Petition Civil Diary No.10829/2020 vide order
dated 07.04.2020, the Hon'ble Supreme Court permitted the petitioner
thereof who had challenged the criterion of the Hon'ble High Powered
Committee of this Court dated 28.03.2020 putting an embargo to the
release on interim bail/ parole of under trials in cases of alleged
commission of economic offences and whereby vide order dated
07.04.2020, the Hon'ble Supreme Court in the said writ petition thus
granted the prayer of the petitioner thereof to withdraw the writ
petition with liberty to prefer a representation before the Hon'ble High
Powered Committee of this Court.
17. Though it is submitted on behalf of the petitioner that merely
because another litigant had withdrawn the prayer made before the
Hon'ble Supreme Court submitting in relation to the alleged
arbitrariness of the criteria laid down by the Hon'ble High Powered
Committee in relation to the economic offences, the same cannot
apply qua the submissions made by the petitioner, nevertheless, it is
essential to observe that in as much as there are allegations against the
petitioner of the alleged commission of economic offences inter alia
punishable under the PMLA Act, 2002 as also punishable under
Section 409 of the Indian Penal Code, 1860, which is punishable with
imprisonment for life or that which may extend to 10 years and to a
fine and thus as the case of the petitioner clearly does not fall within
the parameters of the guidelines laid down by the Hon'ble High
Powered Committee of this Court dated 28.03.2020 nor within the
guidelines of the Hon'ble High Powered Committee laid down on
18.04.2020 referred to hereinabove, coupled with the factum that the
status report dated 15.05.2020 that is of date as received from the
Medical Superintendent of the Central Jail No.8/9, Tihar Jail brings
forth that the condition of the applicant is stable, there is no ground
whatsoever for the grant of interim bail / parole as prayed on behalf of
the petitioner.
18. The Crl.M.A.6440/2020 is declined.
19. However, nothing stated hereinabove shall amount to any
expression on the merits or demerits of W.P.(Crl.) No.814/2020 nor
shall the dismissal of the prayer made by the present petitioner seeking
grant of interim bail/ parole prevent the petitioner from seeking
redressal, if any, before the Hon'ble High Powered Committee of this
Court by moving a representation on lines similar to the observations
made vide order dated 07.04.2020 of the Hon'ble Supreme Court in
Writ Petition Civil Diary No.10829/2020.
ANU MALHOTRA, J.
MAY 15, 2020/vm
