Delhi High Court
Rana Kapoor vs Directorate Of Enforcement on 25 November, 2022
Neutral Citation Number: 2022/DHC/005170
$~28
* IN THE HIGH COURT OF DELHI AT NEWDELHI
Reserved on: 31st October, 2022
Decided on: 25th November, 2022
+ BAIL APPLN.559/2022
RANA KAPOOR .....Applicant
Through: Mr. Vikas Pahwa, Senior
Advocate with Ms. Stuti
Gujral, Ms. Priti Verma
Mr. Shaurya Singh,
Mr. Prabhav Rali and
Mr. Abhishek Pati,
Advocates.
V
DIRECTORATE OF ENFORCEMENT ...... Respondent
Through: Mr. Anupam S. Sharrma,
Special counsel, ED with
Mr. Prakarsh Airan, and
Ms. Harpreet Kalsi,
Mr. Ripudaman Sharma,
Mr. Abhishek Batra,
Mr. Nishant Chaudhary and
Mr. Anurag Verma,
Advocates.
%
CORAM:
HON'BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present bail application is filed under section 439 of the Code
of Criminal Procedure, 1973 (herein after referred to as "the Code")
seeking bail in C.C.no. ECIR/11/HIU/2021 dated 15.06.2021 titled
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Directorate of Enforcement V Gautam Thapar & others pending
in the court of Special Judge (PC Act, CBI-02), Rouse Avenue
District Court, New Delhi.
2. CBI registered FIR bearing RC No.2232021A0005 under sections
120B and 406, 420, 468, 471 IPC at P.S AC-V, Delhi on basis of
complaint received from Ashish Vinod Joshi, Chief Vigilance
Officer, Yes Bank Limited against M/s Oyster Build well Private
Limited and its holding company M/s Avantha Reality Limited, its
Directors/Promoters namely Raghubir Kumar Sharma, Shri Rajendra
Kumar Mangal, Shri Tapsi Mahajan and Gautam Thapar and
unknown officials of M/s Jhabua Power Investment Limited,
unknown known officials of Power Power Limited, unknown
officials of M/s Avantha Holdings Ltd., unknown officials of M/s
Avantha Power & Infrastructure Ltd. and unknown bank officials.
2.1 Thereafter respondent filed CC No. ECIR/11/HIU 2021 dated
15.06.2021 under sections 44 and 45 of Prevention of Money
Laundering Act, 2002 (hereinafter referred to as "PMLA") for
commission of offence of money laundering as defined under
sections 3 and 4 of PMLA which is pending in the Court of Special
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Judge, PMLA, Rouse Avenue Courts. It is alleged in complaint that
subsequent to the removal of Rana Kapoor i.e. the applicant from
management of YES Bank on allegations of granting various credit
facilities to several companies by not following the banking norms
thereby causing huge amount of losses to the YES Bank in lieu of
illegal gratification, various complaints have been filed against
applicant and one such complaint relates to the credit facilities to the
extent of Rs. 514.27 Cr extended to Oyster Buildwell Private Limited
(OBPL) causing a wrongful loss of Rs. 466.51 Cr to the YES Bank.
The said complaint led to the registration of FIR bearing no.
RC2232021A0005 dated by CBI, Delhi under sections 120(B), 406,
420, 468 and 471 of IPC, 1860 against persons as mentioned
hereinabove. It is alleged that above persons having committed
criminal breach of trust, cheating, criminal conspiracy and forgery for
diversion/misappropriation of the public money during the period
from 2017 to 2019 and causing loss to the tune of Rs.466.51 crore to
YES Bank.
2.2 It was observed that huge amounts of proceeds had been
generated from the criminal activity related to the Scheduled
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Offences, therefore, investigation under PMLA was initiated to
investigate possible money laundering and to trace the proceeds of
crime. Accordingly Enforcement Case Information Record (ECIR)
no. ECIR/11/HIU/2021 dated 15.06.2021 was recorded. During
investigation it was revealed that Avantha Group and its three
companies i.e. M/s Oyster Buildwell Pvt. Ltd. (OBPL), M/s Jhabua
Power and Investments Limited (JPIL) and Jhabua Power Limited
(JPL) were involved in the sham agreement for getting the credit
facility from the Bank in pursuance of criminal conspiracy between
the bank and Avantha Group. The applicant was not named as
accused in FIR registered by CBI. The applicant stated to be
interrogated by the respondent/ED and three statements of the
applicant were recorded under section 50 of the PMLA. The
applicant was not arrested during investigation. The concerned trial
court vide order dated 09.10.2021 acting on the Complaint took
cognizance of the offence under sections 3 and 4 PMLA and
summoned 21 persons/entities including the applicant besides seven
other ex-senior employees of Yes Bank to stand trial. The applicant
was stated be in custody at that time in Taloja Central Jail, Mumbai
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in any other case. The co-accused Gautam Thapar was stated to be
taken into custody during investigation on 03.08.2021. The co-
accused filed a bail application under section 439 of the Code read
with sections45/46(1)/65 PMLA before Special Court which was
dismissed by the Special Judge vide order dated 30.10.2021.The co-
accused Gautam Thapar filed a bail application bearing no.
4185/2021 before this court and said bail application was dismissed
vide order dated 02.03.2022.
3. The applicant on 09.11.2021 filed an application for grant of bail
under section 439 of the Code read with sections 45, 46(1) and 65
PMLA. The applicant in bail application pleaded that he was not
arrested during investigation and was available during investigation
and has extended full cooperation in investigation besides other
grounds. The respondent filed reply to bail application. The
respondent also filed additional reply whereby objected to grant of
bail on the basis that since the applicant had not "physically
surrendered" to the Trial Court and as such applicant was not entitled
to file bail application. It is reflecting from order dated 20.11.2021
passed by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act)
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CBI-02, Rouse Avenue Courts that the respondent pleaded for first
production of the applicant to be considered "in the custody of the
Court" and the applicant has to be produced in physical form due to
reason that application was filed under section 439 of the Code. The
applicant was produced before the trial court on 04.01.2022.
3.1 The court of Sh. Sanjeev Aggarwal, Special Judge (PC
Act)(CBI)-02 Rouse Avenue District Court, New Delhi vide common
order dated 20.01.2022 dismissed the bail application of the applicant
but granted bail to all other individuals including the seven ex-senior
YBL officials. The relevant portion of order dated 20.01.2022 is
reproduced as under:-
71. From the above, it appears that Yes Bank
under the leadership of Mr. Rana Kapoor wanted
to take control over the CG Power shares which
were already pledged with other lenders for doing
this, Yes Bank entered into a sham and fraudulent
loan agreement with the Group company of
Avantha through agreements, which were made or
were given a colour in such a manner so as to
make transaction as a banking transaction. Prima
facie on the instructions of Mr. Rana Kapoor, the
employees of Yes Bank allegedly entered into two
sham fraudulent O and M agreements executed
between OBPL and JPIL and JPL and JPIL
respectively.
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72. Further it appears that sole purpose of the loan
was to acquirethe shares of CG Power for
additional security which could not have been
achieved, but for the sham structure, it also
appears same was done in tandem with Mr.
Gauram Thapar to generate proceeds to the tune
of Rs. 500.11 Crores which were generated in this
case due to the above acts of Mr. Rana Kapoor, the
said proceeds of the crime was layered into
untainted business funds through companies
controlled by Mr. Gautam Thapar and were
utilized for repayments of existing loans of
companies and meeting other business
requirements. Layering was done by rotating the
proceeds of crime through bank accounts of
various companies
73. Since prima facie Mr. Rana Kapoor appears to
be the controlling mind of the above fraudulent
transaction along with one Mr. Gautam Thapar,
as both were at the apex of corporate ladder qua
Yes Bank and Avantha Group respectively, it also
appears he was also one of the man beneficiary of
this sham transaction. It is also apparent that he
may be the man pulling the strings or the
controlling mind or master mind or head
controlling the present transaction prima facie,
whereas the other accused persons arraigned in
the present complaint at different levels of the
corporate Pyramid may only have been working as
hands, as they were all employees either of
Avantha Group or Yes Bank, where they were
working in different capacities.
74. During the course of the arguments, it has also
been revealed that Mr. Rana Kapoor is wanted in
one CBI case pertaining to DHFL, where the
amount involved is Rs. 600 Crores approx. and one
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corresponding ED case of the same amount, it has
also been revealed thathe is also wanted in another
ED case of Macaktar of Rs. 200 Crores approx.
and also one CBI case pertaining to Avantha
Reality of Rs. 500
Crores as well as one more case pertaining to ED
qua Cox and Kings, where he is stated to be on
bail, therefore, this accused is having previous
involvement in five different cases that too of huge
magnitude.
It was also argued by ED during the course of
arguments that various loans of huge magnitude
sanctioned during the tenure of A-2 have turned
into non performing assets (NPAs).
75. Since huge loss of public money / funds is
involved in present case, it needs to be viewed
seriously and has to be considered as grave
offence(s) affecting the economy of the country as
a whole and thereby causing serious threat to the
financial health of the country and since economic
offences constitute a class apart, therefore, it needs
to be visited with a different approach in the
matter of bail as economic offence(s) have deep
rooted conspiracies involving huge loss of public
funds. Further money laundering gives oxygen to
organized crime by use of financial vehicles for
transporting dirty / tainted money.
76. Now adverting to the arguments of Ld. Defence
Counsel that the accused meets the triple test i.e.
there is no possibility of tempering of evidence or
influencing the witnesses or fleeing from justice.
With regard to the tempering of evidence, Ld.
Special PP for ED has argued that Mr. Rana
Kapoor was the CEO and MD of Yes Bank, so
there is a complete possibility of tempering of
evidence by him, whereas Ld. Defence Counsel has
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vehemently controverted the same saying all the
evidence is documentary in nature, which cannot
be tinkered by accused. The said argument is not
without any merit, as Mr. Rana Kapoor was in
pole position in the said Yes Bank and was the
main person who was instrumental in getting
through the transaction in question despite
knowing it was sham one, therefore, there are
strong chances that he may temper with the
evidence with the kind of resources and
connections embedded in Yes Bank, if released on
bail at this stage. Though no doubt the entire case
of the ED is based upon documentary evidence,
but still meddling with the evidence considering
his dominant position cannot be ruled out.
With regard to the influencing of witnesses,
considering the
dominant and influential position of this accused
in the transaction in question, as stated above,
there are strong chances as well prima facie that
he may influence the witnesses as also, if released
on bail at this stage.
With regard to the flight risk, since the accused is
involved in five different big ticket cases stated
above, therefore, there may be strong chances of
him fleeing from country in order to escape the
law of the land, therefore, he can also be
considered to be a flight risk at this stage. As a
consequence, the accused fails with regard to all
the parameters of Triple Test.
77. Further, no doubt this accused had not been
formally arrested during the investigations of this
case. Here it would be pertinent to refer to the
following recent judgment of the Hon'ble Bombay
High Court titled as Radha Kapoor Khanna Vs.
Central Bureau of Investigation &Ors., Bindu
Kapoor Vs. CBI & Others, Roshini Kapoor Vs.
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CBI &Others, Rajiv Anand Vs. State of
Maharashtra, decided on 28.09.2021(supra), in a
case pertaining to bail applications of certain
family members of A-2, with regard to one RC
lodged by CBI in DHFL case, it was held in para
16 by the Hon'ble Bombay High Court as under :
16. In any case, considering the three anterior
stages, before converting a suspect to a
convict, which involved a state of actual
interrogation when an accused is taken in
police custody, followed by the stage of
judicial custody, which ensure completion of
investigation and collection of the material in
form of the final report to be placed before
the Magistrate / Competent Court, which is
duty bound to ensure a fair trial. It is only
upon the presentation of the charge-sheet,
where the full material is compiled together,
the gravity of the offence could be judged
and, the possibility of conviction of an accused
being surfaced on the basis of the material
coming before the Court in a crystallized
form, prompted the learned Special Judge to
reject the application for bail. Dispensation of
arrest at the stage of investigationneed not
continue throughout and in particular, when
the offence made out against the Applicants
has now clearly emerged in the charge-sheet
as a grave economic offence and, the witnesses
who will participate in the trial apparently
surfacing, the Applicants do not deserve their
release on bail.
The said judgment is squarely applicable to the
facts of the present case. Therefore, considering
the overall facts and circumstances of the present
case, since the allegations against the applicant /
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accused are most grave and serious in nature, as a
resultant no ground for his bail is made out at this
stage. Consequently, the bail application of
accused Rana Kapoor (A-2) is dismissed.
4. The learned Senior Advocate for the applicant in support of
present bail application primarily submitted arguments on basis
Satinder Kumar Antil V CBI, 2022 SCC Online SC 825. He argued
that the applicant is entitled to bail solely on the ground that he has
not been arrested during investigation and the Supreme Court has
reiterated and re-affirmed that if an accused is not arrested
consciously during investigation, he is entitled to bail on entering
appearance before the court, pursuant to the filing of the charge sheet
and the said proposition of law is equally applicable to a
production/appearance of accused under sections 88, 170 and 204 of
the Code. He further argued that the respondent had arrested the co-
accused Gautam Thapar on 03.08.2021 in the present case, however
consciously deemed fit not to arrest the applicant and proceeded to
file a prosecution complaint against the applicant without arrest.
4.1 The learned Senior Advocate further argued that the Supreme
Court in Satinder Kumar Antil also clarified that the said
proposition of law would also be squarely applicable to offences
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under Special statues such as PMLA, despite the twin rigors under
Section 45 of PMLA, 2002 and there is no need for further arrest at
the instance of the court, if the accused is not arrested during
investigation. The case of the applicant falls only in Category C as
stated in Satinder Kumar Antil and not in Category D as stated by
the Special Counsel for the respondent. He further argued that the
word custody in the context of bail refers to custody in the "same
case" and can by no stretch of imagination be perceived as "custody
in other case(s)" on behalf of the respondent.
4.2 The learned Senior Advocate also controverted arguments
submitted on behalf the respondent the applicant was not arrested
during investigation in the present case as he was already in custody
in another case. The applicant is on bail in other pending cases in
which he was not arrested by the respondent during investigation.
The learned Senior Advocate for the applicant referred para no 65 of
Satinder Kumar Antil.
5. The learned Senior Advocate also argued that the applicant has
fully cooperated during investigation. The applicant got recorded his
statement under section 50 of the PMLA on three occasions while he
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was in judicial custody in Taloja Jail in another cases. He
controverted oral submissions made on behalf of the respondent that
the applicant has "not co-operated" in investigation and referred
Santosh V State of Maharashtra, 2017 (9) SCC 714.
5.1 The learned Senior Advocate also advanced other miscellaneous
arguments which are pendency of other cases or multiple FIRs is not
a ground to deny bail; gravity of offence has to be considered on
basis of severity of punishment; mere apprehension of tampering and
influencingwitnesses is not a ground to deny bail; the applicant is not
a flight-risk; the applicant is entitled to get bail on ground of parity;
the applicant never surrendered before trial court and has appeared in
pursuance of summons etc. The learned Senior Advocate argued that
the applicant be released on bail.
6. The learned Special Counsel for the respondent argued at length
and also submitted detailed written arguments. He argued that the
applicant moved present application for grant of bail primarily urging
that the applicant was not arrested by the respondent during
investigation and the complaint was filed without his arrest as such
the applicant is entitled to bail in view of the section 170 of the Code
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and law laid down in Satinder Kumar Antil but the applicant has
placed a misconceived reliance over Satinder Kumar Antil wherein
it was held that bail of an accused on his appearance in Court in case
relating to offence punishable under Special Acts containing stringent
provisions for bail (like Section 45 of the PMLA in the present case)
even though an accused was not arrested during investigation and had
cooperated with investigation, shall be decided on merits besides
compliance of section 45 of the PMLA.
6.1 The learned Special Counsel further argued that courts were
giving wrong interpretation of section 170 of the Code by insisting
that an accused shall be brought in custody while submission of
charge sheet/prosecution complaint irrespective of the fact that
whether such accused was not arrested during investigation or had
been released on bail during investigation. The Supreme Court in
Siddharth V State of UP, (2022)1 SCC676 clarified that it is not
necessary for the police to arrest the accused prior to filing of
chargesheet nor could the Court direct that the accused be arrested
and be produced before it at the time of filing of chargesheet.
Siddharth did not lay down any guidelines as to the bail of such an
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accused when he appears in Court. The guidelines to be followed
with regard to the bail when an accused appears before the Court as
per the provision of section 170 of the Code have been settled by
Satinder Kumar Antil. The Supreme Court in Satinder Kumar
Antil did not set aside its earlier guidelines laid down in order dated
07.10.2021 but reiterated those guidelines. The prevailing situation
with regard to grant of bail not restricted only to Section 170 of the
Code but the Supreme Court also discussed sections 87 and 88 of the
Code.
6.2 The learned Special Counsel for the respondent also referred
Bimal Kumar Jain V Directorate of Enforcement, Bail
Application bearing no 2438/2022 decided on 13.09.2022 wherein it
was observed that even going by the judgment in Satender Kumar
Antil when an accused is produced before the court without arrest, it
had powers to act under section 88 of the Code to take a bond for
appearance and that power has not been extinguished. The applicant
has misinterpreted para 36 of Satiner Kumar Antil as the Supreme
Court neither held that mandatorily accused has to be released on bail
as per the provision section 170 of the Code nor held that the earlier
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categorization of offences and the guidelines regarding grant of bail
in such a situation shall not apply. He also argued that section 170 of
the Code and the guidelines for grant of bail in Satiner Kumar Antil
do not apply to an accused who is already in custody since it applies
only in cases where an accused is not arrested by the investigating
agency and the charge sheet is filed without his arrest.
6.3 The learned Special Counsel for the respondent further argued
that the applicant has misinterpreted para no. 65 of Satinder Kumar
Antil. The Supreme Court was conscious of the fact that the
objective behind the Special Act and the rigors imposed therein make
it extremely difficult to grant bail.
6.4 The learned Special Counsel for the respondent further argued
that the Supreme Court desired that even in cases of Special Act
when the accused is not in custody when the charge sheet/prosecution
complaint is filed, the Court should not order the arrest of an accused
prior to taking charge sheet on record, since it would be against the
interpretation of Section 170 of the Code and this was only with
regards to the appearance of an accused at the time of filing of charge
sheet/prosecution complaint. He further argued that once the accused
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had put his appearance in court then bail has to be decided as per the
laid down guidelines and it was not hold that the Court shall not
follow the guidelines for grant of bail with regards to accused
covered under Category C which is that the bail shall be decided on
merits besides satisfying the conditions for grant of bail as mentioned
in the Special Act.
6.5 The Special Counsel further argued that the interpretation of the
applicant is incorrect also for the reason that while in cases covered
under Category B and D, the bail application of accused has to be
decided on merits, however, if the interpretation of the applicant is
taken with regards to cases covered under Special Act i.e. Category C
(containing additional stringent conditions for grant of bail), the
accused shall be released on bail on his appearance, like in Category
A which is for grant of bail in non-serious offences. This could have
neither the intention of either the Legislature or the Supreme Court.
6.6 The Special Counsel for the respondent also argued at length that
present bail application be decided on merit.
7. It is reflecting from record that CBI registered FIR bearing RC
No.2232021A0005 under sections 120 B and 406, 420, 468, 471 IPC
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at P.S AC-V, Delhi on basis of complaint received from Ashish
Vinod Joshi, Chief Vigilance Officer, Yes Bank Limited. Thereafter
respondent filed CC No. ECIR/11/HIU 2021 dated 15.06.2021 under
sections 44 and 45 PMLA for commission of offence of money
laundering as defined under sections 3 and 4 of PMLA which is
stated to be pending in the Court of Special Judge, PMLA, Rouse
Avenue Courts. The applicant was not named as accused in FIR
registered by CBI but interrogated by the respondent/ED and his
three statements were recorded under section 50 of the PMLA. The
applicant was not arrested during investigation. The concerned trial
court vide order dated 09.10.2021 acting on the Complaint took
cognizance of the offence under sections 3 and 4 PMLA and
summoned 21 persons /entities including the applicant to stand trial.
The applicant was in custody at that time in Taloja Central Jail,
Mumbai in any other case. The co-accused Gautam Thapar was taken
into custody during investigation on 03.08.2021 who filed a bail
application under section 439 of the Code read with sections
45/46(1)/65 PMLA before Special Court which was dismissed vide
order dated 30.10.2021. Thereafter co-accused Gautam Thapar filed a
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bail application bearing no 4185/2021 which was dismissed vide
order dated 02.03.2022.The applicant on 09.11.2021 filed an
application for grant of bail under section 439 of the Code read with
sections 45, 46(1) and 65 PMLA on grounds that he was not arrested
during investigation and was available during investigation and has
extended full cooperation in investigation besides other grounds. The
applicant was produced before the special court/trial court on
04.01.2022. The bail application filed by the applicant was dismissed
by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act)(CBI)-
02 Rouse Avenue District Court, New Delhi vide common order
dated 20.01.2022 but granted bail to all other individuals including
the seven ex-senior YBL officials. The applicant was taken into
custody accordingly.
8. The issue which needs judicial consideration is pertaining to
applicability and interpretation of Satinder Singh Antil. As per
applicant he is entitled to the bail as he was not arrested during
investigation consciously and cooperated in the investigation and the
charge sheet was filed without arrest and when his bail application
was dismissed by the Special Judge, CBI, the applicant was taken
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into custody. The applicant relied on para no 65 of the Satinder
Kumar Antil. The respondent case is based on the contention that
bail application is required to be decided on merit and para no 65 of
Satinder Kumar Antil is misinterpreted by the applicant and
applicant falls in category C as per decision.
9. The Supreme Court in Satinder Kumar Antil took note of the
continuous supply of cases seeking bail after filing of the final report
on a wrong interpretation of Section 170 of the Code and an endeavor
was made to categorize the types of offenses to be used as guidelines
for the future. The Supreme Court in Siddharth V State of UP,
(2022)1 SCC676 clarified that it is not necessary for the police to
arrest the accused prior to filing of chargesheet nor could the Court
direct that the accused be arrested and be produced before it at the
time of filing of chargesheet.
9.1 The Supreme Court in Satinder Kumar Antil has laid down
guidelines and categorised offences as under:-
Categories/Types of Offences
A) Offences punishable with imprisonment of
7 years or less not falling in category B & D.
B) Offences punishable with death,
imprisonment for life, or imprisonment for
more than 7 years.
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C) Offences punishable under Special Acts
containing stringent provisions for bail like
NDPS (S.37), PMLA (S.45), UAPA (S.43D(5),
Companies Act, 212(6), etc.
D) Economic offences not covered by Special
Acts.
9.2 The Supreme Court also laid down requisite conditions:-
1) Not arrested during investigation.
2) Cooperated throughout in the investigation
including appearing before Investigating
Officer whenever called.
(No need to forward such an accused along
with the chargesheet (Siddharth v. State of
UP, 2021 SCC OnLine SC 615)
9.3 The Supreme Court further laid down as under:-
CATEGORY A
After filing of chargesheet/complaint taking of
cognizance
a) Ordinary summons at the 1stinstance/including
permitting appearance through Lawyer.
b) If such an accused does not appear despite service of
summons, then Bailable Warrant for physical appearance
may be issued.
c) NBW on failure to failure to appear despite issuance of
Bailable Warrant.
d) NBW may be cancelled or converted into a Bailable
Warrant/Summons withoutinsisting physical appearance
of accused, if such an application is moved onbehalf of the
accused before execution of the NBW on an undertaking
of theaccused to appear physically on the next date/s of
hearing.
e) Bail applications of such accused on appearance may
be decided w/o theaccused being taken in physical
custody or by granting interim bail till the bailapplication
is decided.
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CATEGORY B/D
On appearance of the accused in Court pursuant to process
issued bail application to be decided on merits.
CATEGORY C
Same as Category B & D with the additional condition of
compliance of the provisions of Bail under NDPS S.37, 45 PMLA,
212(6) Companies Act 43 d(5) of UAPA, POSCO etc.
Needless to say that the category A deals with both police
cases and complaint cases.
9.4 It was further directed as under:-
The trial Courts and the High Courts will keep in mind the
aforesaid guidelines while considering bail applications.
The caveat which has been put by learned ASG is that
where the accused have not cooperated in the investigation
nor appeared before the Investigating Officers, nor
answered summons when the Court feels that judicial
custody of the accused is necessary for the completion of
the trial, where further investigation including a possible
recovery is needed, the aforesaid approach cannot give
them benefit, something we agree with.
We may also notice an aspect submitted by Mr. Luthra that
while issuing notice to consider bail, the trial Court is not
precluded from granting interim bail taking into
consideration the conduct of the accused during the
investigation which has not warranted arrest. On this
aspect also we would give our imprimatur and naturally the
bail application to be ultimately considered, would be
guided by the statutory provisions.
The suggestions of learned ASG which we have adopted
have categorized aseparate set of offences as "economic
Offences" not covered by the special Acts. In this behalf,
suffice to say on the submission of Mr. Luthra that this
Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40 has
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observed in para 39 that in determining whether to grant
bail both aspects have to be taken into account:
a) Seriousness of the charge and
b) Severity of punishment.
Thus, it is not as if economic offences are completely
taken out of the aforesaid guidelines but do form a
different nature of offences and thus the seriousness of
the charge has to be taken into account but
simultaneously, the severity of the punishment imposed
by the statute would also be a factor.
9.5 The Supreme Court also dealt with scope of section 170 of the
Code. Section 170 of the Code reads as under:-
170. Cases to be sent to Magistrate when evidence is
sufficient.--(1) If, upon an investigation under this
Chapter, it appears to the officer in charge of the police
station that there is sufficient evidence or reasonable
ground as aforesaid, such officer shall forward the accused
under custody to a Magistrate empowered to take
cognizance of the offence upon a police report and to try
the accused or commit him for trial, or, if the offence is
bailable and the accused is able to give security, shall take
security from him for his appearance before such
Magistrate on a day fixed and for his attendance from day
to day before such Magistrate until otherwise directed.
9.5.1 The Supreme Court in relation and interpretation of section 170
of the Code observed as under:-
36. The scope and ambit of Section 170 has already been
dealt with by this Court in Siddharth v. State of U.P., (2022)
1 SCC 676. This is a power which is to be exercised by the
court after the completion of the investigation by the
agency concerned. Therefore, this is a procedural
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compliance from the point of view of the court alone, and
thus the investigating agency has got a limited role to play.
In a case where the prosecution does not require custody of
the accused, there is no need for an arrest when a case is
sent to the magistrate under Section 170 of the Code. There
is not even a need for filing a bail application, as the
accused is merely forwarded to the court for the framing of
charges and issuance of process for trial. If the court is of
the view that there is no need for any remand, then the
court can fall back upon Section 88 of the Code and
complete the formalities required to secure the presence of
the accused for the commencement of the trial. Of course,
there may be a situation where a remand may be required,
it is only in such cases that the accused will have to be
heard. Therefore, in such a situation, an opportunity will
have to be given to the accused persons, if the court is of the
prima facie view that the remand would be required. We
make it clear that we have not said anything on the cases in
which the accused persons are already in custody, for
which, the bail application has to be decided on its own
merits. Suffice it to state that for due compliance of Section
170 of the Code, there is no need for filing of a bail
application.
It is pertinent to mention that the learned Senior Counsel for the
respondent stated that it is not necessary for the court to grant bail.as
per section 170 of the code
9.6 The Supreme Court in respect of offences falling in Category C
observed as under:-
64. Now we shall come to category (C). We do not wish to
deal with individual enactments as each special Act has got
an objective behind it, followed by the rigor imposed. The
general principle governing delay would apply to these
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categories also. To make it clear, the provision contained in
Section 436A of the Code would apply to the Special Acts
also in the absence of any specific provision. For example,
the rigor as provided under Section 37 of the NDPS Act
would not come in the way in such a case as we are dealing
with the liberty of a person. We do feel that more the rigor,
the quicker the adjudication ought to be. After all, in these
types of cases number of witnesses would be very less and
there may not be any justification for prolonging the trial.
Perhaps there is a need to comply with the directions of this
Court to expedite the process and also a stricter compliance
of Section 309 of the Code.
9.7 The Supreme Court further clarified interpretation of section 170
of the Code as under:-
65. We may clarify on one aspect which is on the
interpretation of Section 170 of the Code. Our discussion
made for the other offences would apply to these cases also.
To clarify this position, we may hold that if an accused is
already under incarceration, then the same would continue,
and therefore, it is needless to say that the provision of the
Special Act would get applied thereafter. It is only in a case
where the accused is either not arrested consciously by the
prosecution or arrested and enlarged on bail, there is no
need for further arrest at the instance of the court.
Similarly, we would also add that the existence of a
parimateria or a similar provision like Section 167(2) of the
Code available under the Special Act would have the same
effect entitling the accused for a default bail. Even here the
court will have to consider the satisfaction under Section
440 of the Code.
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10. The applicant is implicated in PMLA which was enacted to
prevent money-laundering and to provide for confiscation of property
derived from, or involved in, money-laundering and for matters
connected therewith or incidental thereto. Section 45 provides that
offences punishable under PMLA are cognizable and non-bailable
also provides stringent conditions in grant of bail. It 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, or is accused either on his own or
along with other co-accused of money-laundering a sum of less
than one crore rupees] may be released on bail, if the Special
Court so directs.
10.1 As per Satinder Kumar Antil, Offences punishable under
Special Acts containing stringent provisions for bail like NDPS
(S.37), PMLA (S.45), UAPA (S.43D(5), Companies Act, 212(6), etc.
fall in category C. The bail applications for offences falling in
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Category C are required to be decided on merit besides consideration
of additional condition of compliance of the provisions of Bail under
NDPS S.37, 45 PMLA, 212(6) Companies Act 43d(5) of UAPA,
POSCO etc.
11. The applicant was not implicated in FIR bearing RC
No.2232021A0005 registered by CBI. The applicant was implicated
in present criminal complaint filed by the respondent/ED and arrayed
as accused no 2. The investigating officer consciously did not arrest
the applicant. The applicant participated in investigation as his three
statements under section 50 PMLA were recorded. The respondent
also did not allege that the applicant neither participated nor
cooperated in investigation. The concerned Special Court after taking
cognizance on present criminal complaint ordered for summoning of
the accused persons including the applicant. The investigating officer
even after filing of present complaint did not apply for custody of the
applicant. The co-accused Gautam Thapar was arrested consciously
by the investigating officer during investigation and was denied bail
by the Special Court and High Court and as such the applicant is
standing on different footing from co-accused Gautam Thapar. The
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applicant was taken into custody due to dismissal of bail application
vide order dated 20.01.2022 passed by the court of Sh. Sanjeev
Aggarwal, Special Judge (PC Act)(CBI)-02 Rouse Avenue District
Court, New Delhi. The applicant primarily not seeking bail on merit
but on basis of observation made by the Supreme Court in para no 65
of Satinder Kumar Antil decision and as such applicant is not
required to pass the test of section 45 PMLA. The conditions as per
section 45 PMLA would be applicable, had the applicant filed an
application either under section 439 of the Code after arrest during
investigation or under section 438 of the Code apprehending his
arrest during investigation. As mentioned in present criminal
complaint filed by the respondent, the applicant was not arrested
during investigation by the investigating agency. There is legal force
in argument advanced by the learned Senior Counsel of the applicant
that applicant is entitled to bail in view of observations/legal
proposition as laid down by the Supreme Court in Satinder Kumar
Antil. It is not mandate of section 170 of the Code that if the accused
is not taken into custody or arrested during investigation can be
arrested or taken into custody after appearance in court post
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summoning order particularly when neither investigation agency nor
prosecution agency sought arrest of accused.
12. The arguments advanced by the learned Special Counsel for the
respondent that the applicant has misinterpreted para no 65 of
Satinder Kumar Antil is misplaced. There is no force in argument
advanced by the learned Special Counsel for the respondent that the
applicant before grant of bail required to pass test of 45 of PMLA.
The position would have been different, had the applicant arrested
during investigation. The investigating agency as mentioned
hereinabove consciously preferred not to arrest the applicant during
investigation or post filing of charge sheet. The arguments advanced
and case law relied on by the Special Counsel for the respondent are
considered in right perspective to the given facts and circumstances
but they do not provide much legal help to the respondent in
opposing present bail application.
13. In view of above discussion the present bail application is
allowed and applicant is admitted to bail on furnishing a personal
bond in the sum of Rs.10,00,000/- (Rupees Ten Lakhs Only ) with
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one surety of the like amount to the satisfaction of the concerned
trial court on following conditions:-
i. That the applicant shall not influence any
witness;
ii. The applicant shall provide his mobile phone
number to the concerned Investigating Officer
(IO) immediately after release which shall be
kept in working condition at all times;
iii. The applicant shall not indulge in any criminal
activity;
iv. The applicant shall not leave country without
prior permission of the Trial/Special Court.
14. The present bail application alongwith pending applications, if
any, stands disposed of.
SUDHIR KUMAR JAIN
(JUDGE)
NOVEMBER 25, 2022
N/SD
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