Suresh Kumar Rekhi And Another vs Union Of India And Another
2021 Latest Caselaw 276 j&K

           IN THE HIGH COURT OF JAMMU AND KASHMIR
                          AT JAMMU


                                            Bail App No.28/2021
                                            CrlM Nos.184/2021
                                            185/2021, 323/2021

                                             Reserved on: 01.03.2021
                                           Pronounced on: 10 .03.2021


Suresh Kumar Rekhi and another                     ... Petitioner(s)

                   Through: - Mr.Ayushman Kotwal Advocate

Vs.

Union of India and another                              ...Respondent(s)

             Through: - Mr.Vishal Bharti Standing Legal Counsel.


CORAM:       HON'BLE MR. JUSTICE SANJEEV KUMAR,JUDGE



                             JUDGMENT

1 Petitioner No.1-Deputy General Manager in J&K Projects

Construction Corporation [JKPSC] along with his wife i.e. petitioner

No.2 ,who have been booked by respondent No.2 for offences under

Section 3 r/w Section 4 of Prevention of Money-Laundering Act, 2002

[PMLA], have approached this Court for anticipatory bail under

Section 438 of Cr.P.C.

2 The Anti Corruption Bureau, Jammu [ACB] registered a case

FIR No. 12/2013 dated 05.08.2013 against petitioner No.1 under

Section 5(1) read with Section 5(2) of J&K Prevention of Corruption

Act, Svt. 2006 (hereinafter referred to as the 'PC Act') on 05.08.2013

on the allegation that petitioner No.1, by indulging in corrupt practices,

had accumulated huge wealth disproportionate to his known sources of

income. The ACB, upon completion of investigation, and having found

the charges against the petitioners substantiated, presented the final

report/chargesheet in the Court of learned Special Judge, Anti

Corruption, Jammu [Special Judge] on 19.03.2008. The ACB, in its

chargesheet submitted to the Court of Special Judge, found the

petitioners in possession of disproportionate assets to the tune of

Rs.3,82,74,730/-. Taking the disproportionate assets accumulated by

the petitioners as 'proceeds of crime', respondent No.2 registered

ECIR/02/JMSZP/2020 dated 21.02.2020 for offences under Section 3

r/w Section 4 of PMLA and set the investigation in motion. As is

claimed by respondent No.2, during the course of PMLA investigation,

it is revealed that petitioner No.2 has sold her immovable property i.e a

plot situated in Housing Colony, Channi Himmat, Jammu to one

Sh. Pritam Sharma for a sale consideration of Rs.63 lac by executing a

sale deed on 17.09.2016 and that she has also sold her another

immovable property i.e a Flat bearing No.1, Block-C on the ground

floor in Nidesh Enclave to one Mrs Tabasum for a sale consideration of

Rs.16,95,000/- by executing a sale deed on 27.04.2019. It is submitted

that both these properties were part of disproportionate assets and

acquired by the proceeds of crime. The petitioners, as is claimed by

them in this bail petition, have been cooperating with respondent No.2

and, therefore, they have not been subjected to custodial interrogation.

They, however, claim that despite they having extended all the

cooperation, respondent No.2 is hell bent upon to take the petitioners in

custody and, therefore, apprehending their arrest by respondent No.2,

they have filed the instant petition for grant of pre-arrest bail.

3 The respondents have filed their objections. The bail plea of the

petitioners has been opposed by them. It is claimed that petitioner No.1

has misused his position and amassed huge wealth by indulging in

corrupt practices. The ACB has, in its thorough investigation, found

petitioner No.1 and his wife possessing assets disproportionate to their

known sources of income. It is also claimed that though, the petitioners

are attending the investigation as and when called, yet they are not

cooperating and producing the documents as are requisitioned from

them. It is also pleaded that the conduct of the petitioners post

registration of the aforesaid FIR by the ACB and presentation of

chargesheet before the Court of Special Judge has been totally

unbecoming of a public servant, in that, they have disposed of two

assets which were part of the investigation and had been, prima facie,

found by the ACB the assets disproportionate to their known sources of

income. It is urged that the petittioners are not entitled to pre-arrest bail

in the offences under Section 3 r/w Section 4 of PMLA.

4 Placing strong reliance on the judgments of Supreme Court in the

cases of P. Chidambaram vs. Directorate of Enforcement, (2019) 9

SCC 24 and Y.S.Jagan Mohan Reddy vs. Central Bureau of

Investigation, (2013) 7 SCC 439, it is argued that in the cases of

economic offences which have serious ramifications on the economy of

the nation, the Court should be very strict in granting bail, more

particularly, the pre-arrest bail. The investigation in economic offences,

it is submitted, is a complicated process and various transactions

entered into by the accused to cover up the proceeds of crime are

required to be traced out and enquired into and, therefore, the custodial

interrogation of the accused becomes all the more necessary.

5 Having heard learned counsel for the parties and perused the

record, I am of the view that, in the given facts and circumstances of

this case, the petitioners deserve the concession of pre-arrest bail.

6 It is not in dispute that prior to registration of a case by

respondent No.2 under PMLA, FIR No. 12/2013 dated 05.08.2013

under Section 5(1)(2) of PC Act, Sections 12/14,13/15 of Public Men

and Public Servant Declaration of Assets and other Provisions Act,

1988 r/w 168/120-B RPC was registered against by the ACB, Jammu

against petitioner No.1. The ACB after completion of investigation

presented the chargesheet before the Court of Special Judge. The

Special Judge has also framed the charges on 27.09.2018. As per the

chargesheet submitted by the police, the petitioners have been found to

be in possession of disproportionate assets to the tune of

Rs.3,82,74,730/-. This is for the period w.e.f 01.03.1991 to 05.08.2013.

Taking the disproportionate assets unearthed by the ACB, respondent

No.2 has also initiated proceedings under PMLA and has formally

registered ECIR/02/JMSZP/2020 dated 21.02.2020 and is investigating

the matter.

7 It is also not in dispute that right from registration of FIR (supra),

respondent No.2 has not found it necessary to subject the petitioners to

custodial interrogation. It is only recently when from the conduct of the

respondents, the petitioners apprehended their arrest, instant application

for pre-arrest bail was filed by the petitioners. This Court, vide its

interim order dated 04.02.2021, while granting time to Mr. Vishal

Sharma, learned ASG to file objections, also provided that the

petitioners shall not be harassed, provided they cooperate with the

investigation and make themselves available as and when asked by

respondent No.2.

8 Though the respondents have made grievance that they have not

been able to get desired cooperation from the petitioners, yet it is on

record that they have attended the investigation as and when required

by respondent No.2. The grievance of respondent No.2, is however,

that though the petitioners are complying with the directions and

attending the investigation, yet they are not disclosing the information

with regard to various documents and the properties. Be that as it may,

ECIR in the case was registered on 21.02.2020 and it was with respect

to the 'proceeds of crime' unearthed by ACB after thorough

investigation. More than one year has passed and the investigation in

the offences under PMLA is going on. During this one year, respondent

No.2 did not feel the necessity of subjecting the petitioners to custodial

interrogation and now when the investigation has considerably

proceeded and is nearing completion, it would be travesty of justice, if

the petitioners are handed over to respondent No. 2 for custodial

interrogation. It needs to be borne in mind that a person accused of an

offence cannot be compelled to produce or submit to the investigating

agency, the incriminating material for a right against self-incrimination

is a fundamental right guaranteed by Article 20 of the constitution of

India.

9 Arrest of accused may be required for effective investigation of

crime, but the same cannot be a substitute of post trial punishment.

After all, an accused is presumed to be innocent until proven guilty.

The golden principle is part of criminal jurisprudence of all civilized

nations including India. Stringent conditions of bail under Section 45 of

the Act have already been declared ultra vires the Constitution in

Nikesh Tarachand Shah vs. Union of India (2018) 11 SCC 1. The

position, however, has been remedied by subsequent amendment. Even

on merits, what is found by the respondents is possession of

disproportionate assets without there being, prima facie, mens rea to

pass it off as untainted property.

10 The reliance placed by respondent No.2 on the twin judgments

i.e P. Chidambaram vs. Directorate of Enforcement, (2019) 9 SCC

24 and Y.S.Jagan Mohan Reddy vs. Central Bureau of

Investigation, (2013) 7 SCC 439 is also misplaced. The aforesaid

cases were the cases of economic offences of huge magnitude which

had the effect of posing serious threat to the financial health of the

country. P. Chidambaram's case (supra) was an investigation in

complicated economic offences having huge ramifications and

repercussions. The aforesaid cases cannot be compared with the instant

case. Instant case is a case of disproportionate assets possessed by the

petitioners which, if not explained, would be an offence under the

Prevention of Corruption Act and may also fall within the purview of

Section 3 read with Section 4 of PMLA.

10 Keeping in view the totality of circumstances obtaining in the

instant case and the fact that the petitioners were never arrested by the

ACB during investigation in FIR No. 12/2013 dated 05.08.2013, nor

they were ever required for custodial interrogation by respondent No.2

while investigating the offences under PMLA for which

ECIR/02/JMSZP/2020 dated 21.02.2020 was registered a year back i.e.

21.02.2020, I am of the view that interest of justice would be met by

allowing this petition. Accordingly, the instant petition is allowed and

the petitioners are granted pre-arrest bail subject to the following

conditions:

(i) That they shall furnish personal bonds in the amount of Rs.1.00 lac each with one surety of the like amount to the satisfaction of the Investigating Officer;

(ii) That they shall cooperate with the investigation and shall appear before the investigating officer as and when called for;

(iii) That they shall not leave the territorial limits of Union Territory of J&K without prior permission of the Investigating Officer;

(iv) That they shall not tamper with the prosecution witnesses.

Disposed of accordingly.

(SANJEEV KUMAR) JUDGE

Jammu 10 .03.2021 Sanjeev

Whether the order is speaking: Yes Whether the order is reportable: Yes/No