2024 TaxPub(CL) 60 (MP-HC)
PREVENTION OF MONEY LAUNDERING ACT, 2002
Sections
3 & 4
Bail was granted to wife of applicant as per first proviso of section 45,
as she was co-accused in case, but applicant was main accused and matter of
money laundering was of higher amount, there was no reasonable grounds for
believing that he was not guilty of offence, therefore, application for grant
of anticipatory bail was dismissed.
|
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.