Madhya Pradesh High Court

Amit Sharma vs The State Of Madhya Pradesh on 20 March, 2023

Author: Vishal Dhagat

                                                             1
                           IN     THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                                ON THE 20 th OF MARCH, 2023
                                          MISC. CRIMINAL CASE No. 5076 of 2023

                          BETWEEN:-
                          AMIT SHARMA S/O SHRI MAHENDRA SHARMA, AGED
                          ABOUT 34 YEARS, OCCUPATION: PRIVATE JOB AT
                          DIGITAL   INDIA  EXPRESS   (WEEKLY   PRESS),
                          GWARIGHAT POLICE STATION GWARIGHAT DISTRICT
                          JABALPUR (MADHYA PRADESH).

                                                                                             .....APPLICANT
                          (SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI WITH SHRI
                          PAWAN GUJAR - ADVOCATE FOR APPLICANT)

                          AND
                          STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION LORDGANJ, DISTRICT JABALPUR (MADHYA
                          PRADESH).

                                                                                         .....RESPONDENT
                          (SHRI PRAMOD THAKRE - GOVERNMENT ADVOCATE FOR STATE)

                                This application coming on for admission this day, the court passed the
                          following:
                                                              ORDER

This is second application under Section 439 of the Code of Criminal Procedure for grant of bail to applicant, who has been arrested on 29.08.2022 in connection with Crime No. 356/2022 for offence under Section 420 of the IPC registered at Police Station-Lordganj, District-Jabalpur (M.P.).

2. First application M.Cr.Cr. No. 45989/2022 filed by applicant was dismissed on 16.11.2022. It was stated that applicant was actively involved in opening account of Pramod Rajak. In said account main accused in case Satish Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 3/23/2023 1:54:46 PM

Santpal and Vivek Pandey had made huge transactions of money amounting to Rs. 47 crores. Applicant was also acting for said persons in running their illegal business. Applicant is member of organized syndicate, who is committing crime and doing business of money laundering. Applicant is required for further investigation in the case. Investigating agency is doing further investigation of the case and there is possibility that applicant is involved in money laundering rackets. Considering aforesaid circumstance, first bail application was dismissed.

3. Learned Senior Counsel appearing for the applicant submitted that applicant is in jail since 29.08.2022. It is submitted that there is no cogent and

plausible evidence to point towards complicity of applicant in alleged offence. No incriminating articles were seized from exclusive possession of applicant. Applicant is falsely implicated in the crime. Applicant does not have any criminal antecedent. There is no progress in trial and completion of trial will take long time. Applicant is charged for committing offence under Section 420 of IPC, which is punishable upto 7 years of imprisonment. Investigation is complete. Applicant is being kept behind bars with malicious intention and ulterior motive. There is no likelihood of applicant absconding from law. In these circumstances, prayer if made for release of applicant on bail.

4. Government Advocate appearing for the State opposed the application for grant of bail. It is submitted that Pramod Rajak lodged written report to Superintendent of Police on 10.06.2022 that through his brother complainant meet Satish Sanpal, who promised him to provide money required for his marriage. He was referred to Vivek Pandey and Amit Sharma (present applicant). Said persons took Pan Card and Aadhar Card and other requisite documents from complainant and provided complainant loan to extent of Rs. Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 3/23/2023 1:54:46 PM

30,000/-. Documents of complainant was used for opening his bank account, in which illegal transactions were made by accused persons. Further, prosecution alleged that applicant had opened company Nutritive Traders Private Ltd. and accounts were opened in HDFC and ICICI Banks, in which transactions of about Rs. 47 crores were made. Said company was used as cover to do money laundering in respect of money which has been earned from gambling. It is submitted that many shell companies were opened for purposes of money laundering. It was argued that applicant was also committing offence of money laundering. No company in name of Nutritive Trader Private Limited was in existence. Applicant alongwith main accused has opened as many as 12 shell companies, which are not in existence and transaction of about 10.3 billions in said account was made. Charges under Prevention of Money Laundering Act, 2002 is also to be added. Police is doing further investigation in the case. In these circumstances, applicant may not be enlarged on bail.

5. Learned Senior Counsel appearing for the applicant argued that applicant cannot be kept in jail on ground that further investigation is being carried out by investigation agency. Charge-sheet has already been filed and therefore, further investigation cannot be done. No charges has been framed under Prevention of Money Laundering Act, 2002. Offence under Section 420 is punishable with 7 years of imprisonment. Learned Senior Counsel argued that

police had to seek permission from Magistrate for carrying out further investigation in the case. No application has been filed before Magistrate for carrying out further investigation and while arguing bail application, Government Advocate is opposing the prayer on ground that applicant is required for further investigation. Learned Senior Counsel had relied on judgment in case of

Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 3/23/2023 1:54:46 PM

Amrutbhai Shambhubhai Patel v. Sumanbhai Kantibhai Patel and others, (2017) 4 SCC 177. In said judgment, it has been held that once cognizance has been taken and accused appears before Court in pursuance of process issued by Court, Magistrate in absence of any request by investigating agency possess no power to direct further investigation in the case either suo motu or on prayer of complainant. Further, investigation can be directed on request of investigating agency/officer in circumstances warranting further investigation. No request has been made before Magistrate for further investigation in the case therefore, applicant cannot be unnecessarily detained in jail malafidely on pretext of further investigation and applicant be released on bail.

6. Government Advocate appearing for the State has opposed the said arguments and relied on judgment of Apex Court reported in Luckose Zachariah alias Zak Nedumchira Luke and others v. Joseph Joseph and others, 2022 SCC OnLine SC 241. He relied on para 10 of the said judgment, which is quoted as under :

"10. In the judgment of this Court in Vinay Tyagi (supra) it has been held that a further investigation conducted under the orders of the court or by the police on its own accord would lead to the filing of a supplementary report. The supplementary report, the Court noted, would have to be dealt with "as part of the primary report" in view of the provisions of sub-Sections 3 to 6 of Section

173."

Placing reliance on para 10, it was argued that police can do further investigation on its own or on direction from Magistrate. It is not necessary for police to obtain permission from Magistrate to do further investigation in all cases. It is submitted that further investigation is going on and applicant is required to unearth all illegalities and money laundering therefore, he may not be Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 3/23/2023 1:54:46 PM

released on bail.

7. Heard the counsel for the parties.

8. Judgment relied on by applicant i.e. Amrutbhai Shambhubhai Patel (supra) has been over-ruled, as mentioned in para 13 of the judgment in case of Luckose Zachariah (supra). Further, Apex Court has made the law clear. Placing reliance on judgment in case of Vinay Tyagi vs Irshad Ali, (2013) 5 SCC 762 and Vinubhai Haribhai Malaviya and others v. State of Gujarat and another, (2019) 17 SCC 1 it was held that Magistrate has to read report filed under Section 173(2) Cr.PC. and supplementary report filed under Section 173(8) Cr.P.C. together and thereafter, has to reach its conclusion regarding commission of offence. It has also been held in case of Vinay Tyagi (supra) and Vinubhai Haribhai Malviya (supra) that Magistrate or Investigating Officer / concerned police station can exercise their power to do further investigation till the stage when trial commences. In criminal cases, trial commences on framing of charge. After framing of charge power of Judicial Magistrate First Class and investigating agency is seized to order or to do further investigation in the case. However, High Court and Supreme Court exercising its Constitutional powers can order further investigation, re- investigation or de-novo investigation in interest of justice even after framing of charge and there is no bar. Power of Judicial Magistrate First Class and Investigating Officers has limitations and further investigation can only be done till framing of charge.

9. Power of investigating agency or Magistrate to order further investigation ceases as charge against him has been framed. Charge against applicant was framed on 11.11.2022 under Section 420 IPC. Prosecution has not filed any petition before High Court or before the Supreme Court for further Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 3/23/2023 1:54:46 PM

investigation in the case. Judicial Magistrate First Class does not any power after framing of charge to order further investigation.

10. Considering aforesaid circumstances of the case and the fact that charge has been framed under Section 420 IPC, applicant is in jail since 29.08.2022 and the fact that offence is not punishable with more than 7 years of imprisonment, bail application filed by the applicant is allowed on following conditions :

1 . Applicant will cooperate in trial and will appear before trial Court on all dates fixed for hearing of case.

2 . Applicant will mark his presence before Police Station- Lordganj, District-Jabalpur (MP) on first of every month till completion of trial.

3. Applicant will not leave the country without permission of trial Court.

4. Prosecution is at liberty to seek permission from High Court to do further investigation, if required in the case.

11. It is directed that applicant be released on bail on furnishing personal bond of Rs. 1,00,000/-(Rs. One Lac only) with one solvent surety and security in the like amount to the satisfaction of the trial court.

12. The applicant shall also abide by the following conditions of Section 437 (3) of Cr. P. C. as under:-

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter;

(b) that such person shall not commit any offence similar to the offence of which he is accused, or suspected of the commission of which Signature Not Verified Signed by: VINOD KUMAR TIWARI Signing time: 3/23/2023 1:54:46 PM

he is suspected and;

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.