Madhya Pradesh High Court
Shri Suresh Narayan Vijaywargia vs Directorate Of Enforcement on 6 February, 2024
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 6 th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 58013 of 2023
BETWEEN:-
SHRI SURESH NARAYAN VIJAYWARGIA S/O LATE SHRI
S.L. VIJAYWARGIA, AGED ABOUT 83 YEARS,
OCCUPATION: BUSINESSMAN R/O BUNGLOW NO 4,
VIJAYDWAR PEOPLES CAMPUS BHANPUR BHOPAL
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI SANJAY K. AGRAWAL - ADVOCATE ASSISTED BY SHRI
YAGYAVALK SHUKLA - ADVOCATE)
AND
D I R E C T O R AT E OF ENFORCEMENT THROUGH
ASSISTANT DIRECTOR DIRECTORATE OF
ENFORCEMENT BHOPAL ZONAL OFFICE B.S.N.L.
BHAWAN GROUND FLOOR JAIL ROAD NEW
NIRVACHAN SADAN ARERA HILLS BHOPAL (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI VIKRAM SINGH - ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
This is the first application filed by the applicant under Section 438 of the
Cr.P.C. seeking anticipatory bail. The applicant is apprehending his arrest in
connection with FIR/Crime No.ECIR/08/INSZO/2022 8.11.2023 registered at
Directorate of Enforcement, Bhopal zonal Office for the offences punishable
under Sections 3/4 of the Prevention of Money Laundering Act, 2002 (herein
after referred to as the PMLA).
2. The counsel for the applicant contends that the present applicant is
innocent and has been falsely implicated in the case. The applicant is being
prosecuted on the basis of a complaint filed by the respondent under Sections
44 and 45 of the PMLA. It is contended that the applicant was never involved in
any activity pertaining to money laundering. He has co-operated with the
process of investigation. The applicant was issued notices by the respondent
during investigation and the applicant co-operated with the process of
investigation on two occasions. It is further contended that the applicant is aged
about 83 years. As the applicant was not well, therefore, he apprised the
respondent that he would not be in a position on account of adverse health
condition to appear, however, later on after recovering from illness, the
applicant despite being aged about 83 years appeared before the respondent. It
is contended that the applicant is suffering from multiple disorders, which are
detailed in Para f of the application. It is, thus, contended that the applicant is
'sick' and 'infirm' within the meaning of proviso to Section 45 of the PMLA. It
is also contended that there is already an order of attachment and the properties
which according to the respondent are disputed, have already been attached,
therefore, incarceration of the applicant is not only going to seriously affect his
health but also not at all conducive or justified taking into consideration the age
of the applicant. It is further submitted that in terms of the order dated
17.1.2024 passed by this Court, a report has been submitted by the Director,
All India Institute of Medical Sciences, Bhopal. The said report itself reflects
that the applicant is suffering from multiple disorders and also requires proper
monitoring regarding morbidities by the experts. The counsel for the applicant
has placed reliance on the decision of High Court of Delhi in Kewal Krishan
Kumar Vs. Enforcement Directorate - 2023 SCC OnLine Del 1547.
Reliance has also been placed on the order dated 28.8.2023 passed by the Apex
Court in Paras Kumar Bansal Vs. Enforcement Directorate in S.L.P.
(Criminal) No. 8161 of 2023 and order dated 20.11.2023 passed by the Apex
Court in Rajesh Kumar Vs. The Directorate of Enforcement in S.L.P.
(Criminal) No. 12803 of 2023.
3. Per contra, the counsel for the respondent submits that the present
application filed by the applicant deserves to be dismissed. It is contended that
the allegations detailed in the complaint would reveal that the proceed of crime
are in colossal amount. Crore of Rupees have been siphoned off, therefore, the
present applicant is not entitled to be enlarged on anticipatory bail. The counsel
while taking this Court to the memorandum of the complaint submits that the
present applicant is guilty of commission of offence under the PMLA and only
on account of being sick and infirm, he is not entitled for anticipatory bail in
view of the law laid down by the Apex Court in Saumya Chourasia Vs.
Directorate of Enforcement - Criminal Appeal No. 3840 of 2023 @ SLP
(Criminal) No. 8847/2023 - 2023 INSC
4. It is also submitted that the nature of sickness and infirmity has been
taken into consideration by the High Court of Delhi also in Sameer Mahandru
Vs. Directorate of Enforcement in Bail Application No. 1343/2023 &
Crl.M.(Bail) 1439/2023 decided on 19.10.2023 and Sanjay Jain Vs.
Enforcement Directorate in Bail Application No. 3807/2022 decided on
5/6/2023.
5. It is also contended that as per the report submitted by the All India
Institute of Medical Sciences, Bhopal it is evident that the applicant does not
require hospitalization and only requires oral medication with periodic
evaluation. Thus, taking into consideration the report submitted by the All India
Institute of Medical Sciences, Bhopal, the applicant is not entitled to be
enlarged on anticipatory bail.
6. It is submitted that merely because the applicant, upon receiving the
summons, appeared before the respondent that ip so facto does not entitle him
to be enlarged on bail and this aspect was also taken note of by the Apex Court
in Sumitha Pradeep v. Arun Kumar C.K. - 2022 SCC OnLine SC 1529 . It
is further submitted by the counsel for the respondent that the applicant has
even alienated some properties after initiation of the proceedings of attachment
against him. Thus, it is submitted that the applicant is not entitled to be enlarged
on anticipatory bail.
7. Heard the submissions advanced on behalf of the counsel for the
parties and perused the record.
8. In the present case, the applicant is aged about 83 years and seeking
relief of anticipatory bail in terms of proviso to Section 45 of the PMLA.
Proviso to Section 45 of PMLA provides that the 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. The
applicant in Para 5 of the application claimed that he is suffering with number of
disorders, therefore, vide interlocutory order dated 17.1.2024, the applicant was
directed to be examined by the All India Institute of Medical Sciences, Bhopal
and the All India Institute of Medical Sciences, Bhopal, in turn, was directed to
submit the report. T h e All India Institute of Medical Sciences, Bhopal
constituted a Medical Board. The Medical Board consisting of the experts of
the fields of General Medicine, Orthopedics, Opthalmology and Cardiology
examined the present applicant and accordingly, the report dated 29.1.2024
was submitted. As per the said report, the applicant has been found to be
suffering with Ishemic Heart Disease (IHD) since 2015 with preserved EF,
Hypothyroidism since 10 years and well controlled with medication and
Bilateral Knee Osteoarthritis with Lumbar Spondylosis. The conclusion as
mentioned in the Medical Report dated 29.1.2024 reveals that morbidities are
under control with treatment and did not require any acute or active intervention
at the point of examination. The medical report suggested that the applicant
requires oral medication for the above health conditions with periodic
evaluation.
9. The aforesaid report is based on the opinion of the experts of different
fields as mentioned hereinabove after subjecting the applicant to a thorough
examination. Though the report does not suggest that any hospitalization is
required at present, however, it has been opined that the difficulty in the
movement of the present applicant is due to old age and Bilateral Osteoarthritis
knee joints.
10. So far as the applicant's cooperation with the investigation is
concerned, it reflects from the perusal of the complaint that the applicant herein
was issued summons on as many as 6 occasions. First summons was issued to
the applicant on 19.8.2023, then on 22.8.2023, 29.8.2023, 6.10.2023,
13.10.2023 and 20.10.2023. In response to aforesaid 6 summons, the applicant
on 4 occasions did not appear as according to the applicant he was indisposed,
however, the applicant appeared on 5.9.2023 and 27.10.2023, which is evident
from Table 23, which finds mention in Paragraph 20 of the complaint.
11. It is further evident from Para 17.1 of the complaint that the applicant
alienated two properties, which are detailed in Table 20-A. The properties were
sold on 7.8.2023. As per Table 23 of the complaint, the first summon was
issued to the complainant on 19.8.2023. It is further evident from the perusal of
the Table that summons of all accused were also issued on 19.8.2023 or on
subsequent dates. So far as issuance of summon on 19.8.2023 is concerned,
the prosecution has not levelled any allegation that property was alienated after
19.8.2023 till filing of the complaint. The applicant undisputedly appeared
before the respondent on 27.10.2023, which is evident from Table 23 and
thereafter the complaint in the case was filed on 8.11.2023. Meaning thereby
within 10 days from the last appearance of the applicant before the respondent,
the complaint under Sections 44 and 45 was filed by the respondent. It is also
not in dispute that the the properties, which have been found to be connected
with crime, have already been attached by an order dated 1.11.2023.
12. In view of the aforesaid, it is discernible from the record that the
present applicant is a person aged about 83 years. He has been examined by the
Medical Board consisting of the experts of different fields. The Medical Board
found that the applicant is suffering with aforesaid morbidities, though the
Board has suggested that the said disorders can be kept under control with the
aid of oral medication but the Medical Report also suggests periodic evaluation
of the applicant's health.
13. At the cost of repetition, it would be germane to observe that the
applicant has been examined by the experts of various fields and such experts
are not available in Jail Hospital. The Board of experts suggested periodic
examination of the applicant and also concluded that the applicant is suffering
w i t h Ishemic Heart Disease (IHD) since 2015 with preserved EF,
Hypothyroidism since 10 years and well controlled with medication and Bilateral
Knee Osteoarthritis with Lumbar Spondylosis.
14. The judgments relied upon by the counsel for the respondent in
Sanjay Jain (supra) is of no assistance to the respondent and is factually
distinguishable, inasmuch as, the ailments which were claimed by the accused
therein were considered by the High Court of Delhi in Paragraphs 37 to 39 and
the applicant in that case was aged about 57 years. Simultaneously, the reliance
on the decision of the Apex Court in Saumya Chourasia (supra) also does
not put an absolute restriction on the exercise of power under Section 45 of the
PMLA. As per the Apex Court, the Courts are required to exercise discretion
judiciously using their prudence while granting bail to the category of persons as
detailed in Section 45 of the PMLA while taking into consideration the
involvement of the person in the alleged offence and also the nature of evidence
collected by the Investigating Agency.
15. In the present case, in view of the aforesaid report of the Medical
Board, it cannot be said with full proof that the applicant is hale and hearty and
is in the state of suffering incarceration at the age of 83 years. Therefore, this
Court is of the considered view that in terms of the proviso contained in
Section 45 of the PMLA, the applicant is entitled to be enlarged on anticipatory
bail under the following exceptional circumstances:-
i. The applicant is aged about 83 years,
ii. The applicant is suffering from Ishemic Heart Disease (IHD) since
2015 with preserved EF, Hypothyroidism and Bilateral Knee Osteoarthritis with
Lumbar Spondylosis.
iii. The applicant appeared before the respondent upon receiving the
summons on two occasions i.e. on 5.9.2023 and 27.10.2023.
iv. The complaint was filed against the applicant on 8.11.2023 i.e. within
10 days of applicant's appearance before the respondent on 27.10.2023.
16. Thus, taking into consideration, the aforesaid exceptional
circumstances, this Court deem it proper to enlarge the applicant on
anticipatory bail. Accordingly, this application is allowed.
17. It is directed that in the event of arrest, applicant shall be enlarged on
bail on furnishing a personal bond in a sum of Rs.1,00,000/- (Rupees One
Lakh Only) with one surety in the like amount to the satisfaction of the
Arresting Officer for his appearance before him during the course of
investigation or before the trial Court during trial, as the case may be.
18. The applicant shall not make any endeavour to alienate the properties,
which are under attachment or any other property, in which he is involved
individually or in the capacity of Director/Proprietor/Partner of the Company or
Firm.
19. The applicant shall surrender his passport forthwith before the trial
Court and shall not leave India without prior permission of the Court.
20. It is further directed that the applicant shall abide by all the conditions
as enumerated under Section 438(2) of the Cr.P.C.
(MANINDER S. BHATTI)
JUDGE
PB
