2024 TaxPub(CL) 60 (MP-HC)

PREVENTION OF MONEY LAUNDERING ACT, 2002

Sections 3 & 4

Offence of money laundering - Application for grant of anticipatory bail - Bail already granted to his wife as co-accused - Applicability of principle of parity

A complaint was registered against applicant and his wife under section 13 of Prevention of Corruption Act for illegal earning of black money and purchase of property. On basis of such complaint, Enforcement Directorate (ED) filed complaint against them for violation of sections 3 and 4 of PMLA. The applicant filed an application for grant of anticipatory bail on the ground that bail was already granted to his wife. Therefore, he was also entitled for grant of bail as per Rule of Parity. Held: A woman can take benefit of first proviso of section 45, where she can be released when the money laundering is of lesser amount. Wife of the applicant was co-accused in this case and case of money laundering was also registered against her for lesser amount. Therefore, the bail was granted to her. In case of the applicant, he was the main accused and the matter was related to economic offences containing property worth Rs. 1,55,87,861. Further, there were no reasonable grounds for believing that he was not guilty of the offence and that he was not likely to commit any offence. Therefore, the principle of parity was not applicable. Thus, the application for grant of anticipatory bail was dismissed.

REFERRED : Directorate of Enforcement v. M. Gopal Reddy & Anr. 2022 SCC Online SC 1862 : 2023 TaxPub(CL) 963 (SC); P. Chidambaram v. Directorate of Enforcement (2019) 9 Supreme Court Cases 24 : 2020 TaxPub(CL) 0369 (SC)

FAVOUR : Against the applicant

A.Y. :

IN THE MADHYA PRADESH HIGH COURT

PREM NARAYAN SINGH, J.

Mohd. Aslam Khan v. Directorate of Enforcement

Misc. Criminal Case No. 35963 of 2023

19 December, 2023

Applicant by: Veer Kumar Jain, learned Senior Advocate alongwith Rizwan Khan, learned Counsel

Respondent by: Himanshu Joshi, Deputy Solicitor General

1. This is first bail application filed under section 438 of the Code of Criminal Procedure, 1973 for grant of anticipatory bail who is apprehending his arrest relating to FIR No. 179/2018 dated 6-8-2018 registered at Police Station-Special Police Establishment, Lokayukta, Bhopal (M.P.) for the offence under section 13(1) of the Prevention of Corruption Act, 1988 of IPC.

2. As per prosecution story, the allegation against the applicant is that the present applicant has illegally earned the black money and purchased movable and immovable property in the name of his family members. It is also alleged that the present applicant is working as an employee of Municipal Corporation, Indore and his income was only Rs. 21 lakhs whereas he purchased movable and immovable property worth of Rs. 1,55,87,861 and in this regard, he could not file any satisfactory reply or any documentary proof, hence he is liable for offence under section 13(1)(e) of the Prevention of Corruption Act, 1988 also liable for offence under section 4 of the Prevention of Money Laundering Act, 2002.

3. Shri Veer Kumar Jain, learned Senior Counsel for the applicant submits that applicant was yet to be arrested while the charge sheet has already been filed, hence, there is no need to arrest of the applicant. On this point, learned senior counsel has filed a copy of Order, dated 4-12-2023 passed by Hon'ble the Apex Court in Cr. A. No. 3695/2023, Rahela Khan v. Directorate of Enforcement, Bhopal Zonal Office by stating that the bail order was passed only on the basis that she was not arrested during the course of investigation and due to that, Interim Order, dated 16-10-2023 was made absolute. On that basis, learned Senior Counsel is claiming parity and submitting that since in this case also, the applicant has not been arrested till date, he should be granted on anticipatory bail. During his argument, he has also relied upon the Judgments, dated 2-9-2021 passed in Cr. A. No. 929/2021 (Aman Preet Singh v. C.B.I. Through Director), dated 7-10-2021 passed in SLP (Crl.) No. 5191/2021 (Satender Kumar Antil v. Central Bureau of Investigation & Anr.), dated 20-3-2023 passed in Cr. A. No. 853/2023 (Mahdoom Bava Central Bureau of Investigation), dated 28-1-2004 passed in Crl. M. (M) No. 3875/2003 (Court of its own motion v. Central Bureau of Investigation), dated 1-2-2023 passed in SLP (Crl.) No. 2106/2022 (Pawan Kumar Agrawal & Anr. v. Enforcement Directorate Through I.O.) dated 8-5-2023 passed in SLP (Crl.) No. 3373/2023 (Raghvendra Singh Tomar v. Directorate of Enforcement) by Hon'ble Apex Court. It is further contended that since investigation is completed, there is no need to arrest of this applicant. The final conclusion of the trial is likely to take sufficient long time. Therefore, it has been prayed that the applicant may be released on anticipatory bail.

4. Learned counsel Shri Himanshu Joshi, Deputy Solicitor General appearing on behalf of Directorate of Enforcement Bhopal Zonal Office, has vehemently opposed the bail application and submitted that this is a case where the applicant is not able to explain the sources of his income and in such type of offences anticipatory bail should not be granted.

5. With regard to parity, counsel for the respondent submitted that the present applicant is main accused in this case while co-accused Rahela Khan was made accused being wife of the present applicant. He further submitted that as per section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA'), the applicant can be released on bail only when 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.....'

6. In view of rival submissions, the matter has been perused. Before dwelling upon this point section 45 of the Prevention of Money Laundering Act, 2002 is worth taking into consideration which is reproduced below :--

'Section 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:

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.'

7. Certainly, the petition of Rahela Khan was allowed by Hon'ble Apex Court in SLP (Crl.) No. 13070/2023. However, in view of the aforesaid propositions, a woman can take benefit of the first proviso, where she can be released when the money laundering is of lesser amount. Since the applicant is main accused, the principle of parity is not applicable. I have bestowed anxious considerations to the precedents cited by learned Senior counsel for the applicant, but in the considered view of this Court, the same are inapposite to the factual scenario of this case. So far as the law laid down in the cases of Aman Preet Singh (supra) and Satender Kumar (supra) are concerned, they were passed on different perspectives. Likewise, the law laid down in the case of Mahdoom Bava (supra) is concerned, the custodial interrogation was not required by CBI in that cases, hence due to different facts of the case, applicant of this case cannot be benefitted by the aforesaid case.

8. So far as the judgments passed in the cases of Pawan Kumar Agrawal (supra) and Raghvendra Singh Tomar (supra), the facts of those cases are not applicable here, because in the case at hand, it is remonstrated by learned Dy. Solicitor General that the investigation pertains to applicant is still going on as he is still dealing with proceeds of crime, hence, in light of section 45 of PMLA, applicant cannot be benefited for grant of anticipatory bail.

9. On this point it is to be kept in mind that the law laid down by the Hon'ble Apex Court in the case of 'P. Chidambaram v. Directorate of Enforcement (2019) 9 Supreme Court Cases 24 : 2020 TaxPub(CL) 0369 (SC)' is applicable in this case which is as under :--

69. 'Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under section 438 of the Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in execeptional cases........'

78. 'Power under section 438 of the Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In 'Directorate of Enforcement v. Ashok Kumar Jain' it was held that in economic offences, the accused is not entitled to anticipatory bail.'

10. In another case of 'Directorate of Enforcement v. M. Gopal Reddy and another 2022 SCC Online SC 1862 : 2023 TaxPub(CL) 963 (SC) ', Hon'ble Apex Court endorsing the aforesaid view and reversing the order of concerned High Court observed as under :--

32. '............In case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under section 438 of the Cr.P.C.'

11. In view of the aforesaid observation and perusal of the facts and circumstances, since the matter is related to the economic offences containing property worth Rs. 1,55,87,861, the applicant cannot be released under the provisions of anticipatory bail and therefore, anticipatory bail application filed under section 438 of the Cr.P.C. is hereby dismissed.

Certified copy, as per rules.