Application Under Section 482 Of ... vs For
2023 Latest Caselaw 3149 Ori

             IN THE HIGH COURT OF ORISSA AT CUTTACK

                        CRLMC No. 2940 of 2022

        Application under Section 482 of Criminal Procedure Code,
        1973.
                                ---------------
AFR     Chintan Joshi                             ......    Petitioner

                                  -Versus-

        Niranjan Behera                           .......   Opp.Party

        Advocate(s) appeared in this case:-
        _________________________________________________________
              For Petitioners     : Mr. D. Panda, S. Panda, A. Mehta
                                    & D.K. Panda, Advocates.

             For Opp. Parties     : Mr. Gopal Agarwal, Advocate
                                    [Enforcement Directorate]

        _________________________________________________________
        CORAM:
             JUSTICE SASHIKANTA MISHRA

                               JUDGMENT

11th April, 2023

SASHIKANTA MISHRA, J. The petitioner is the accused in Crl.

Misc. Case (PMLA) No. 01 of 2020 pending in the Court of

learned Sessions Judge, Khurdha at Bhubaneswar.

2. It appears that originally an FIR was lodged by

the CID, CB, Cuttack on 30.05.2017 leading to registration

of Case No. 13 of 2017 basing on a search conducted in the

residential premises of the petitioner on the allegation that

he was engaged in procurement of large number of Monitor

Lizard hemi-penises and trading of the same online. Upon

completion of investigation, charge sheet was submitted on

28.02.2018 in the Court of learned S.D.J.M., Bhubaneswar

for the offences under Sections 177/182/420 of IPC read

with Section 51 of the Wildlife Protection Act, 1972. The

Enforcement Directorate, Bhubaneswar found that the FIR

and charge sheet submitted by the CID, CB made out a

prima face case of money laundering under Section 3 of the

Prevention of Money Laundering Act, 2002 (in short "PMLA

Act") punishable under Section 4 of the Act. Accordingly,

ECIR bearing No. ECIR/BBSZO/03/2018 dated

14.06.2018 was registered against the petitioner and

investigation was taken up. In course of investigation, the

residential premises of the petitioner were searched again

and certain incriminating materials were allegedly

recovered. It was further found that the said articles had

been procured by the petitioner from the proceeds of the

crime of illegal possession and sale of Monitor Lizard hemi-

penises and the same had been layered as movable

properties in the form of bank balances in his name and in

the name of his proprietorship concern. A provisional

attachment order was made on 29.09.2019 and an original

complaint has also been filed before the learned

adjudicating authority, PMLA, New Delhi for confirmation

of attachment of properties. On such facts, the

aforementioned complaint was filed in the Court of learned

Sessions Judge-cum-Special Court under the PMLA Act,

Khordha, Bhubaneswar.

3. Pursuant to summons issued by the Court, the

petitioner entered appearance through his counsel and

filed a petition under Section 205 of Cr.P.C. seeking

exemption from personal appearance and representation

through his counsel. Such petition was filed, inter alia, on

the ground that he is the only son of his old and ailing

parents, who are undergoing treatment for various

ailments and that he would not be prejudiced if the trial is

conducted in his absence through his counsel. However, by

order dated 16.08.2022, the Court below rejected the

petition taking note of the fact that money laundering is an

economic offence and Section 45 of the PMLA Act, 2002 is

restrictive in nature. The said order is impugned in the

present application filed under Section 482 of Cr.P.C.

4. Heard Mr. D. Panda, learned counsel for the

petitioner and Mr. Gopal Agarwal, learned counsel

appearing for the Enforcement Directorate, Bhubaneswar.

5. Mr. Panda submits that the petitioner is the

only son of his old and ailing parents, who are suffering

from several ailments and require constant medical

attention. Further, the petitioner is ready and willing to

appear before the Court physically whenever it is felt

necessary for the case. He is also ready to undertake that

he shall not dispute his identity at any point of time. It is

also argued by Mr. Panda that Section 45 of PMLA Act,

could not have been invoked by the Court below as a

ground to reject the petition under Section 205 of Cr.P.C.

because the total proceeds of the crime according to the

prosecution is only Rs.3,19,100/-. Referring to the first

proviso to Section 45 of the PMLA Act, Mr. Panda argues

that the alleged proceeds of the crime being much less than

Rs.1 Crore, the rigors of the provision would not apply.

Even otherwise, the amount of proceeds being so less, the

finding of the Court below that it being an economic offence

would have an impact on the national economy and

security is quite farfetched. Mr. Panda sums up his

argument by contending that the prosecution never

arrested him nor sought to take him to custody during

investigation. He has been released on bail in the

connected case and has never misused the liberty so

granted. Mr. Panda has relied upon some decisions, which

would be discussed later.

6. Mr. Gopal Agarwal, on the other hand has

vehemently objected to the contentions advanced by Mr.

Panda by submitting that the amount of money involved in

an offence as serious as money laundering is not material.

It does not become a lesser offence only because the

amount of money involved is less. Mr. Agarwal further

argues that it is open to the petitioner to apply for bail by

physically appearing before the Court but cannot invoke

the provision under Section 205 of Cr.P.C. as a substitute

for bail. It is also argued that the exemption from personal

attendance is not a vested right conferred on the accused

but is a matter within the exclusive discretion of the

concerned Court. Moreover, such power is to be exercised

not routinely but in rare cases only. The petitioner being a

resident of Bhubaneswar, no hardship would be caused to

him by physically appearing in the Court on the date of

posting of the case. The petitioner's conduct in seeking

repeated adjournments does not entitle him to any relief.

Mr. Agarwal sums up his arguments by submitting that the

nature of accusation, the severity of punishment likely to

be imposed and conduct of accused do not entitle him to

the benefit under Section 205 of Cr.P.C. Mr. Agarwal has

also relied upon some decisions, which would be referred to

later.

7. Before proceeding to determine whether it is a

fit case to grant exemption to the petitioner from personal

attendance in the Court under Section 205 of Cr.P.C., it

would be proper to first examine the provision under

Section 45 of the PMLA Act, which the Court below has

cited as a ground to reject the petition filed by the

petitioner and Mr. Agarwal has also relied upon before this

Court. Section 45 of PMLA Act, reads as follows:

"45. Offences to be cognizable and non-bailable.-- (1) 1 [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence 2 [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, 3 [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:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by--

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.]

(2) The limitation on granting of bail specified in 5 *** sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

8. From the copy of the complaint filed by the

Asst. Director (PMLA), Bhubaneswar the role of the accused

is stated as follows:

"He was involved in illegal possession and sale of Monitor Lizard hemi-penises (Hatha Jodi) and horns of some wild animals (Shiyar Singi) in contravention of Section 39 of the Wild Life (Protection) Act, 1972 which is punishable under Section 51 of the Act and being Schedule Offence under the PMLA, 2002, which are nothing but "proceeds of crime" which amount around to Rs.3,19,100/-. The proceeds of crime derived/obtained from such criminal activity is subsequently laundered by investing in movable properties (bank balances) and hence committed an offence under Section 3 of the PMLA which is punishable under Section 4 of the PMLA."

Thus, essentially, the allegation against the

petitioner is of obtaining Rs.3,19,100/- as proceeds of the

crime and if subsequently laundering the same by

investing movable properties (bank balance). From a

reading of the provision under Section 45, it is evident that

the same is not intended to place an absolute bar for

granting bail to accused under the PMLA Act. Even

otherwise, an exception to the main provision is carved out

in the form of a proviso. Thus, having regard to the fact

that the proceeds of the crime allegedly laundered by the

petitioner being much less than Rs. 1 crore, it is evident

that the rigors of Section 45 would not apply. This Court

would of course hasten to add that the proviso as above

does not however, water down the seriousness of the

offence in any manner whatsoever.

9. Mr. D. Panda has relied upon several

decisions, such as Sanjay Kumar Agarwal vs. Directorate

of Enforcement, reported in (2022) SCC OnLine Jhar 1248

and the decision of the Apex Court in the case of Bhaskar

Industries Ltd. vs. Bhiwani Denim & Apparels Ltd.

reported in (2001) 7 SCC 401.

10. In the case of Sanjay Kumar Agarwal (supra),

a Single Judge of the Patna High Court while considering a

similar matter examined the position of law relating to

Section 205 of Cr.P.C., the case of Bhaskar Industries Ltd.

(supra) and Section 45 of PMLA Act. The Hon'ble Single

Judge allowed the petition under Section 205 of Cr.P.C.

with certain conditions.

In the case of Bhaskar Industries Ltd. (supra)

the Apex Court summarized its findings as follows:

"19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further."

(Emphasis supplied)

Placing reliance on the decisions cited above,

Mr. D. Panda would argue that Section 205 Cr.P.C. confers

discretion on the Court to grant personal exemption if

situation so warrants. In the instant case, summons was

issued to the petitioner and not warrant and therefore, he

did not submit himself to custody of the Court. Moreover,

dispensing with personal appearance will not cause

prejudice to anyone.

11. On the other hand, Mr. Gopal Agarwal has

relied upon the decision of the apex Court in the case of

Lily Begum v. Joy Chandra Nagbanshi, reported in (1994)

2 SCC 39; TGN Kumar v. State of Kerala, reported in

(2011) 2 SCC 772; S.V. Muzumdar v. Gujarat State

Fertilizer Co. Ltd., reported in (2005) 4 SCC 173; Vijay

Madanlal Choudhary v. Union of India, reported in 2022

SCC OnLine SC 929; and Rohit Tandon v. Directorate of

Enforcement, reported in (2018) 11 SCC 46.

12. On the basis of the decisions cited above, Mr.

Agarwal, firstly submits that economic offences or white

collar crimes cannot be equated with other cases because

of their wide ramifications such cases have on the

economic security of the country. He further argues that

the petitioner has not made out any case for exemption

from personal appearance as he is a resident of

Bhubaneswar and can easily attend the Court without

adversely affecting his business. By insisting for personal

appearance, the learned Special Court has given the

petitioner an opportunity to seek bail by offering sureties

and executing bonds by subjecting himself to the

jurisdiction of the Court through a bond to the effect that

he shall cooperate with trial by abiding by the conditions

imposed by the Court.

13. Having heard the parties at length, this Court

would like to examine whether a case for exemption from

personal appearance is made out.

14. In Bhaskar industries Ltd. (supra) it was held

that the discretion conferred by Section 205 of Cr.P.C. on

the Court is to be used only in rare cases where personal

appearance of the accused would cause great hardship on

him. In particular, if the accused is residing at a far-off

place or has any physical ailment or is otherwise

indisposed, the prayer for exemption from personal

attendance can be favourbaly considered. But such

discretion is not to be exercised routinely or on the mere

asking.

15. In the present case, the petitioner claims that

he is the only son of his aged parents, who are ill and

require constant attention. No document is filed in this

regard. This Court finds that the petitioner is a relatively

young man, aged about 38 years. He is a resident of

Bhubaneswar and also has his business in Bhubaneswar.

Therefore, attending the Court can by no stretch of

imagination be treated as causing undue hardship on him.

As already stated, the power under Section 205 is not

meant to be used routinely but only when circumstances

so demand. In view of what has been stated hereinbefore,

this Court finds the circumstances not justifying exercise of

such power by the Court. To such extent therefore, this

Court finds no infirmity much less any illegality in the

impugned order so as to interfere.

16. In the result, the CRLMC is found to be devoid

of any merit and is therefore, dismissed.

..................................

Sashikanta Mishra, Judge

Orissa High Court, Cuttack, The 11th April, 2023/ A.K. Rana, P.A.