Jharkhand High Court
Chhavi Ranjan vs Union Of India Through Directorate Of … on 21 August, 2024
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 10833 of 2023
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Chhavi Ranjan, S/o Sh. R.D. Pandit, R/o 2/4 Senior
Officers‟ Colony, P.O. Morabadi, P.S. Bariatu, District
Ranchi, Jharkhand … … Petitioner
Versus
Union of India through Directorate of Enforcement,
represented by Assistant Director, Ranchi Zonal Office,
Plot No. 1502/B, Airport Road, P.O. Hinoo, P.S. Doranda,
District Ranchi, Jharkhand-834002.
… … Opposite Party
———
CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY
———
For the Petitioner : Mr. Indrajit Sinha, Adv.,
Mr. Abhishek Choudhary, Adv.,
Mr. Rishav Raj, Adv.
For the Opp. Party : Mr. Anil Kumar, A.S.G.I.,
Ms. Chandana Kumari, A.C. to
A.S.G.I.
———
C.A.V. on 17/05/2024 Pronounced on 21/08/2024
Heard Mr. Indrajit Sinha, learned counsel for
the petitioner and Mr. Anil Kumar, learned Additional Solicitor
General of India for the Enforcement Directorate.
2. In this application the petitioner prays for grant
of bail in connection with ECIR Case No. 05/2023, arising out
of ECIR/RNZO/10/2023 instituted u/s 3 and 4 of the
Prevention of Money Laundering Act, 2002.
3. The prosecution case in brief is that a First
Information Report bearing No. 399 of 2022 was registered by
Sadar Police Station u/s 406, 420, 467, 468, 447, 504, 506,
341, 323/34 of the IPC against the accused persons including
the petitioner for illegally acquiring 01 acre of land at Cheshire
Home Road, Ranchi. Since the offences u/s 420 and 467 of the
IPC are Schedule Offences under Part A of the Schedule of
Prevention of Money Laundering Act, 2002 (in short PMLA,
2002) and since prima facie offence of money laundering u/s 3
of PMLA, 2002 which is punishable u/s 4 of the PMLA, 2002
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B.A. No. 10833 of 2023
was made out, an ECIR Case bearing No. RNZO/10/2023 was
recorded on 07.03.2023 and an investigation under the
provisions of the PMLA, 2002 was initiated.
4. It has been submitted by Mr. Indrajit Sinha,
learned counsel appearing for the petitioner that an application
was preferred by the petitioner u/s 88 Cr.P.C. on 15.09.2023
since the petitioner was not arrested by the Prosecuting
Agency during the period of investigation and, therefore, he
was not to be remanded in judicial custody consequent to the
filing of the charge-sheet and taking of cognizance. This
submission of Mr. Sinha, however, has been preceded by him
by giving a narration of the factual aspects so far as the
petitioner is concerned, to the effect that ECIR Case No.
05/2023 was registered by the Court vide order dated
04.07.2023 and though the petitioner was arrayed as an
accused in the said case but the power of arrest was not
exercised during the investigation by the Agency against the
petitioner who was already in custody in connection with
another case being ECIR Case No. 01/2023 though with
respect to the case of Prem Prakash who is a co-accused and
who was already in custody in connection with another case
was arrested by the Directorate of Enforcement in ECIR Case
No. 05/2023 by exercising the powers u/s 19 of the PMLA,
2002. It has been submitted that after completion of
investigation in ECIR Case No. 05/2023 a prosecution
complaint was filed by the Directorate of Enforcement, in
which, a prayer was made for remand of the petitioner even
though he was not arrested in course of investigation. On
27.09.2023, the learned Special Judge had passed an order of
taking the petitioner into custody in spite of an application
filed on behalf of the petitioner wherein a prayer was made
that since the petitioner had not been arrested during the
investigation he ought not to be taken on remand and instead
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B.A. No. 10833 of 2023
should be guided by the provisions of Section 88 Cr.P.C. read
with Section 170 Cr.P.C. Mr. Sinha, in such context, has
referred to the case of “Siddharth vs. State of Uttar Pradesh &
Another” reported in (2022) 1 SCC 676, while submitting that
Section 170 Cr.P.C. does not have reference to any form of
remand but refers merely to the appearance of the accused
before the Magistrate at the time of filing of charge-sheet. Mr.
Sinha has also referred to the case of “Satender Kumar Antil vs.
CBI”, reported in (2022) 10 SCC 51 and “Rana Kapoor vs.
Directorate of Enforcement” in Bail Application No. 559/2022.
In the case of an accused who has not been arrested during
investigation and is taken into custody at the instance of the
learned Special Judge such accused is not required to pass the
twin test as envisaged in Section 45 of the PMLA, 2002. Mr.
Indrajit Sinha, learned counsel for the petitioner has also
referred to the case of “Tarsem Lal vs. Directorate of
Enforcement Jalandhar Zonal Office” in Criminal Appeal No.
2608 of 2024. It has been submitted that the petitioner has
cooperated in the investigation and there is no necessity of any
custodial interrogation by the Enforcement Directorate and
hence taking into consideration the law laid down by the
Hon‟ble Supreme Court in the judgment referred to by him, he
has submitted that the petitioner deserves to be released on
bail.
5. Mr. Anil Kumar, learned Additional Solicitor
General of India for the Enforcement Directorate has submitted
that during investigation under PMLA, 2002 the direct
complicity of the petitioner in the illegal transfer of the
property has come to light. In the year 2021, a false deed was
manufactured and after sometime the property was acquired in
the name of Punit Bhargava for an amount of
Rs. 1,78,55,800/- and the mutation of the property was done
in his name on 25.02.2021. The said Punit Bhargava has
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B.A. No. 10833 of 2023
transferred the property in a very hurried manner in the name
of the petitioner on 01.04.2021 for an amount of
Rs. 1,80,00,000/-. Mr. Anil Kumar, learned ASGI has
submitted that the investigation further revealed on the
statement of Manoj Kumar, the Circle Officer that he was
pressurized by the petitioner to complete the mutation of the
property situated at Cheshire Home Road, Ranchi ignoring the
claim of one Umesh Kumar Gope. The mutation of the property
in the name of Punit Bhargava was done in one day by the
Circle Officer, Baragain with the connivance of the petitioner,
Prem Prakash and Afsar. The Circle Officer, Baragain vide
letter No. 587 dated 17.08.2023 informed that the property
was acquired by the Government of Bihar under the Urban
Land Ceiling Act in Case No. 371/1976. It has been submitted
that the petitioner was the Registrar, District Magistrate and
Deputy Commissioner of Ranchi during the period when the
offence of money laundering was committed. He had misused
his official position and supressed and concealed facts and
records to extend undue favours to his accomplices Bishnu
Kumar Agarwal, Prem Prakash and others and the close
proximity of the petitioner with the other accused persons
gains strength from their WhatsApp chat. The petitioner by
misusing his official position had influenced Government
officials in obtaining favourable reports and selectively relied
upon vague explanations and unreliable reports to give orders
favouring Bishnu Kumar Agarwal and assisted him in
acquisition and possession of “proceeds of crime”. Mr. Anil
Kumar, learned ASGI has strongly refuted the submission of
Mr. Indrajit Singh, learned counsel for the petitioner that the
twin conditions necessary to be fulfilled u/s 45 PMLA, 2002
will not act as a deterrent for an accused who had not been
arrested during investigation and was taken into custody by
the order of the Court by submitting that in a case of bail the
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B.A. No. 10833 of 2023
stringent conditions which unfolds in Section 45 PMLA, 2002
have to be mandatorily followed and in no circumstances any
relaxation is permissible. He has referred to the case of “Vijay
Madanlal Choudhary & Ors. vs. Union of India & Ors.” reported
in „2022 SCC OnLine SC 929‟. It has, therefore, been submitted
that the learned trial court had correctly applied the law and
denied bail to the petitioner.
6. Mr. Indrajit Sinha, learned counsel for the
petitioner, in reply, has drawn the attention of the Court to
Para 36 of the counter affidavit filed by the Directorate of
Enforcement, wherein, it has been admitted that the twin
conditions in special statute would apply after incarceration
and does not apply only in cases where the accused is not
arrested and appeared before the Court against the summons.
7. I have heard the learned counsels for the
respective sides and have also perused the affidavits filed on
their behalf.
8. What would transpire from the sequence of
events as drawn from the factual aspects of the case is that on
04.05.2023 the petitioner was arrested by the Directorate of
Enforcement by invoking the provisions of Section 19 PMLA,
2002 in course of investigation into another case
(ECIR/RNZO/18/2022) giving rise to ECIR Case No. 01/2023,
in which, the predicate offence was encapsulated in Bariatu
P.S. Case No. 141/2022. On the basis of a Schedule offence as
in Sadar P.S. Case No. 399/2022, ECIR/RNZO/10/2023 was
registered which culminated in filing of a prosecution
complaint being ECIR Case No. 05/2023 which is the
captioned matter in the present bail application. The
prosecution complaint was filed on 01.09.2023 and the
cognizance was taken by the learned Special Judge on
04.09.2023. The application preferred by the petitioner u/s 88
Cr.P.C. read with Section 170 Cr.P.C. was rejected on
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B.A. No. 10833 of 2023
27.09.2023 and the petitioner was remanded in ECIR Case No.
05/2023. The pertinent question which, therefore, falls for
consideration is whether the petitioner is entitled to the grant
of bail without fulfilling the twin conditions as envisaged in
Section 45 of the PMLA, 2002 on account of the petitioner not
having been arrested during investigation and was sent to
custody only on account of the prosecution complaint filed
against him and cognizance taken subsequently.
9. In “Siddharth vs. State of Uttar Pradesh & Anr.”
(supra), it has been held as follows:
“9. We are in agreement with the aforesaid
view of the High Courts and would like to give our
imprimatur to the said judicial view. It has rightly
been observed on consideration of Section 170
CrPC that it does not impose an obligation on the
officer-in-charge to arrest each and every accused
at the time of filing of the charge-sheet. We have,
in fact, come across cases where the accused has
cooperated with the investigation throughout and
yet on the charge-sheet being filed non-bailable
warrants have been issued for his production
premised on the requirement that there is an
obligation to arrest the accused and produce him
before the court. We are of the view that if the
investigating officer does not believe that the
accused will abscond or disobey summons
he/she is not required to be produced in custody.
The word “custody” appearing in Section 170
CrPC does not contemplate either police or judicial
custody but it merely connotes the presentation of
the accused by the investigating officer before the
court while filing the charge-sheet.”
10. The law laid down in the case of “Siddharth vs.
State of Uttar Pradesh & Anr.” (supra) has been reiterated in
the case of “Aman Preet Singh vs. CBI through Director” reported
in 2021 SCC OnLine SC 941 [(2022) 13 SCC 764], in the
following manner:
“9. In our view, the purport of Section
170CrPC should no more be in doubt in view of
the recent judgment passed by us in Siddharth v.
State of U.P. [Siddharth v. State of U.P., (2022) 1
SCC 676 : (2022) 1 SCC (Cri) 423] In fact we put
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B.A. No. 10833 of 2023
to the learned Senior Counsel whether he has
come across any view taken by this Court qua the
said provision. The learned counsel also refers to
judgments of the High Court which we have
referred to in that judgment while referring to
some judicial pronouncements of this Court on the
general principles of bail. The only additional
submission made by the learned counsel is that
while the relevant paragraphs of the judgment of
the Delhi High Court in Court on its own motion v.
CBI [Court on its own motion v. CBI, 2004 SCC
OnLine Del 53 : (2004) 72 DRJ 629] have received
the imprimatur of this Court, the extracted
portions from the judgment [Court on its own
motion v. CBI, 2004 SCC OnLine Del 53 : (2004)
72 DRJ 629] of the Delhi High Court did not
include para 26.”
10. The said paragraph deals with
directions issued to the criminal courts and we
would like to extract the portion of the same as
under : (Court on its own motion case [Court on
its own motion v. CBI, 2004 SCC OnLine Del 53
: (2004) 72 DRJ 629] , SCC OnLine Del para 26)
“26. Arrest of a person for less
serious or such kinds of offence or offences
those can be investigated without arrest
by the police cannot be brooked by any
civilised society.
Directions for criminal courts:
(i) Whenever officer-in-charge of police
station or investigating agency like CBI
files a charge-sheet without arresting the
accused during investigation and does not
produce the accused in custody as referred
in Section 170CrPC the Magistrate or the
court empowered to take cognizance or try
the accused shall accept the charge-sheet
forthwith and proceed according to the
procedure laid down in Section 173CrPC
and exercise the options available to it as
discussed in this judgment. In such a case
the Magistrate or Court shall invariably
issue a process of summons and not
warrant of arrest.
(ii) In case the court or Magistrate
exercises the discretion of issuing warrant
of arrest at any stage including the stage
while taking cognizance of the charge-
sheet, he or it shall have to record the
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B.A. No. 10833 of 2023
reasons in writing as contemplated under
Section 87CrPC that the accused has
either been absconding or shall not obey
the summons or has refused to appear
despite proof of due service of summons
upon him.
(iii) Rejection of an application for
exemption from personal appearance on
any date of hearing or even at first
instance does not amount to non-
appearance despite service of summons or
absconding or failure to obey summons
and the court in such a case shall not
issue warrant of arrest and may either
give direction to the accused to appear or
issue process of summons.
(iv) That the Court shall on
appearance of an accused in a bailable
offence release him forthwith on his
furnishing a personal bond with or without
sureties as per the mandatory provisions
of Section 436CrPC.
(v) The Court shall on appearance of
an accused in non-bailable offence who
has neither been arrested by the
police/Investigating Agency during
investigation nor produced in custody as
envisaged in Section 170CrPC call upon
the accused to move a bail application if
the accused does not move it on his own
and release him on bail as the
circumstance of his having not been
arrested during investigation or not being
produced in custody is itself sufficient to
entitle him to be released on bail. Reason
is simple. If a person has been at large
and free for several years and has not
been even arrested during investigation, to
send him to jail by refusing bail suddenly,
merely because charge-sheet has been
filed is against the basic principles
governing grant or refusal of bail.”
11. In “Satender Kumar Antil vs. CBI” (supra), the
principle laid down in the case of “Siddharth vs. State of Uttar
Pradesh & Anr.” (supra) was once again taken into
consideration and it was held as follows:
Page 8 of 16
B.A. No. 10833 of 2023
“43. The scope and ambit of Section 170
has already been dealt with by this Court in
Siddharth v. State of U.P. [Siddharth v. State of
U.P., (2022) 1 SCC 676 : (2022) 1 SCC (Cri) 423]
This is a power which is to be exercised by the
court after the completion of the investigation by
the agency concerned. Therefore, this is a
procedural compliance from the point of view of
the court alone, and thus the investigating agency
has got a limited role to play. In a case where the
prosecution does not require custody of the
accused, there is no need for an arrest when a
case is sent to the Magistrate under Section 170
of the Code. There is not even a need for filing a
bail application, as the accused is merely
forwarded to the court for the framing of charges
and issuance of process for trial. If the court is of
the view that there is no need for any remand,
then the court can fall back upon Section 88 of the
Code and complete the formalities required to
secure the presence of the accused for the
commencement of the trial. Of course, there may
be a situation where a remand may be required, it
is only in such cases that the accused will have to
be heard. Therefore, in such a situation, an
opportunity will have to be given to the accused
persons, if the court is of the prima facie view that
the remand would be required. We make it clear
that we have not said anything on the cases in
which the accused persons are already in
custody, for which, the bail application has to be
decided on its own merits. Suffice it to state that
for due compliance of Section 170 of the Code,
there is no need for filing of a bail application.”
12. The interpretation of Section 170 Cr.P.C. was
clarified in the aforesaid judgment and the same is quoted as
under:
“89. We may clarify on one aspect which is
on the interpretation of Section 170 of the Code.
Our discussion made for the other offences would
apply to these cases also. To clarify this position,
we may hold that if an accused is already under
incarceration, then the same would continue, and
therefore, it is needless to say that the provision
of the Special Act would get applied thereafter. It
is only in a case where the accused is either not
arrested consciously by the prosecution or
arrested and enlarged on bail, there is no need for
further arrest at the instance of the court.
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B.A. No. 10833 of 2023
Similarly, we would also add that the existence of
a pari materia or a similar provision like Section
167(2) of the Code available under the Special Act
would have the same effect entitling the accused
for a default bail. Even here the court will have to
consider the satisfaction under Section 440 of the
Code.”
13. In “Rana Kapoor vs. Directorate of Enforcement”
(supra), it was held as follows:
“33. The applicant was not implicated in
FIR bearing RC No. 2232021A0005 registered by
CBI. The applicant was implicated in present
criminal complaint filed by the respondent/ED
and arrayed as accused no 2. The investigating
officer consciously did not arrest the applicant.
The applicant participated in investigation as his
three statements under section 50 PMLA were
recorded. The respondent also did not allege that
the applicant neither participated nor cooperated
in investigation. The concerned Special Court after
taking cognizance on present criminal complaint
ordered for summoning of the accused persons
including the applicant. The investigating officer
even after filing of present complaint did not apply
for custody of the applicant. The co-accused
Gautam Thapar was arrested consciously by the
investigating officer during investigation and was
denied bail by the Special Court and High Court
and as such the applicant is standing on different
footing from co-accused Gautam Thapar. The
applicant was taken into custody due to dismissal
of bail application vide order dated 20.01.2022
passed by the court of Sh. Sanjeev Aggarwal,
Special Judge (PC Act)(CBI)-02 Rouse Avenue
District Court, New Delhi. The applicant primarily
not seeking bail on merit but on basis of
observation made by the Supreme Court in para
no 65 of Satinder Kumar Antil decision and as
such applicant is not required to pass the test of
section 45 PMLA. The conditions as per section 45
PMLA would be applicable, had the applicant filed
an application either under section 439 of the
Code after arrest during investigation or under
section 438 of the Code apprehending his arrest
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B.A. No. 10833 of 2023
during investigation. As mentioned in present
criminal complaint filed by the respondent, the
applicant was not arrested during investigation
by the investigating agency. There is legal force in
argument advanced by the learned Senior
Counsel of the applicant that applicant is entitled
to bail in view of observations/legal proposition
as laid down by the Supreme Court in Satinder
Kumar Antil. It is not mandate of section 170 of
the Code that if the accused is not taken into
custody or arrested during investigation can be
arrested or taken into custody after appearance in
court post summoning order particularly when
neither investigation agency nor prosecution
agency sought arrest of accused.
34. The arguments advanced by the learned
Special Counsel for the respondent that the
applicant has misinterpreted para no 65 of
Satinder Kumar Antil is misplaced. There is no
force in argument advanced by the learned
Special Counsel for the respondent that the
applicant before grant of bail required to pass test
of 45 of PMLA. The position would have been
different, had the applicant arrested during
investigation. The investigating agency as
mentioned hereinabove consciously preferred not
to arrest the applicant during investigation or post
filing of charge sheet. The arguments advanced
and case law relied on by the Special Counsel for
the respondent are considered in right perspective
to the given facts and circumstances but they do
not provide much legal help to the respondent in
opposing present bail application.”
14. Mr. Anil Kumar, learned ASGI has referred to
the case of “Vijay Madanlal Choudhary & Ors. vs. Union of
India & Ors.” (supra), while submitting that non-arrest of the
petitioner in the captioned matter will not dilute the fulfilment
of the twin conditions and the following is being quoted in
support of such contention:
“411. Suffice it to observe that it would be
preposterous and illogical to hold that if a person
applies for bail after arrest, he/she can be
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B.A. No. 10833 of 2023
granted that relief only if the twin conditions are
fulfilled in addition to other stipulations
predicated in the 1973 Code; but another person,
who is yet to be arrested in connection with the
same offence of money laundering, will not be
required to fulfil such twin conditions whilst
considering application for grant of bail under
Section 438 of the 1973 Code. The relief of bail, be
it in the nature of regular bail or anticipatory bail,
is circumscribed by the stipulations predicated in
Section 45 of the 2002 Act. The underlying
principles of Section 45 of the 2002 Act would get
triggered in either case before the relief of bail in
connection with the offence of money-laundering
is taken forward. Any other view would be
counterproductive and defeat the purposes and
objects behind the stringent provision enacted by
the Parliament for prevention of money-laundering
and to combat the menace on account of such
activity which directly impacts the financial
systems, including the sovereignty and integrity
of the country.
412. As a result, we have no hesitation in
observing that in whatever form the relief is
couched including the nature of proceedings, be it
under Section 438 of the 1973 Code or for that
matter, by invoking the jurisdiction of the
Constitutional Court, the underlying principles
and rigors of Section 45 of the 2002 must come
into play and without exception ought to be
reckoned to uphold the objectives of the 2002 Act,
which is a special legislation providing for
stringent regulatory measures for combating the
menace of money-laundering.”
15. In “Tarsem Lal vs. Directorate of Enforcement
Jalandhar Zonal Office” (supra), it has been held as follows:
19. Based on the submissions made
across the Bar, there are three issues concerning
Section 88, which are as under:
19.1.(i) Whether Section 88 applies
to an accused who has been served with a
summons or applies to an accused who
appears before the court before the
summons is issued or served?
19.2.(ii) Will Section 88 apply to a
complaint under PMLA?
19.3.(iii) Whether an order issued by
a criminal court to the accused to furnishPage 12 of 16
B.A. No. 10833 of 2023
bonds in accordance with Section 88
amounts to a grant of bail?
20. Firstly, after examining the provisions
of PMLA, it is apparent that Section 88 is in no
manner inconsistent with the provisions of PMLA.
Therefore, Section 88 will apply after filing of a
complaint under Section 44(1)(b) PMLA. If Section
88 is to apply even before a summons is issued or
served upon a complaint, there is no reason why
it should not apply after the service of summons.
A discretionary power has been conferred by
Section 88 on the court to call upon the accused to
furnish bonds for his appearance before the court.
It does not depend on the willingness of the
accused. The object of Section 88 is to ensure that
the accused regularly appears before the court.
Section 88 is a part of Chapter VI CrPC under the
heading “Processes to Compel Appearance”.
Section 61, which deals with the form of summons
and mode of service of summons, is a part of the
same Chapter. When a summons is issued after
taking cognizance of a complaint to an accused,
he is obliged to appear before the criminal court
on the date fixed in the case unless his presence
is exempted by an express order passed in the
exercise of powers under Section 205CrPC.
Therefore, when an accused appears pursuant to
a summons issued on the complaint, the court will
be well within its powers to take bonds under
Section 88 from the accused to ensure his
appearance before the court. Therefore, when an
accused appears before the Special Court under a
summons issued on the complaint, if he offers to
submit bonds in terms of Section 88, there is no
reason for the Special Court to refuse or decline to
accept the bonds. Executing a bond will aid the
Special Court in procuring the accused’s presence
during the trial.
“21. A decision of this Court in Pankaj Jain
v. Union of India [Pankaj Jain v. Union of India,
(2018) 5 SCC 743 : (2018) 2 SCC (Cri) 867 : (2018)
9 SCR 248] had an occasion to deal with the
issue. The occasion to consider the provision of
Section 88 was the word “may” used in the
Section. We may conveniently reproduce paras 21
and 22 of the said decision, which reads thus :
(SCC pp. 754-55)
21. This Court in State of Kerala v.
Kandath Distilleries [State of Kerala v.
Kandath Distilleries, (2013) 6 SCC 573]
came to consider the use of expression
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B.A. No. 10833 of 2023
“may” in the Kerala Abkari Act, 1902. The
Court held that the expression conferred
discretionary power on the Commissioner
and power is not coupled with duty.
Following observation has been made in
para 29 : (SCC p. 584)
„29. Section 14 uses the expression
“Commissioner may”, “with the approval of
the Government” so also Rule 4 uses the
expressions “Commissioner may”, “if he is
satisfied” after making such enquiries as he
may consider necessary “licence may be
issued”. All those expressions used in
Section 14 and Rule 4 confer discretionary
powers on the Commissioner as well as the
State Government, not a discretionary power
coupled with duty.‟
22. Section 88CrPC does not confer
any right on any person, who is present in a
court. Discretionary power given to the court
is for the purpose and object of ensuring
appearance of such person in that court or to
any other court into which the case may be
transferred for trial. Discretion given under
Section 88 to the court does not confer any
right on a person, who is present in the court
rather it is the power given to the court to
facilitate his appearance, which clearly
indicates that use of the word “may” is
discretionary and it is for the court to
exercise its discretion when situation so
demands. It is further relevant to note that
the words used in Section 88 “any person”
have to be given wide meaning, which may
include persons, who are not even accused
in a case and appeared as witnesses.”
(emphasis in original and supplied)
16. It is an admitted case that the petitioner was
not arrested during investigation and he was remanded post-
filing of the prosecution complaint and taking of cognizance by
the learned Special Court. As held in Rana Kapoor vs.
Directorate of Enforcement (supra), “there is no force in the
argument advanced by the learned Special Counsel for the
respondent that the applicant before grant of bail required to
pass test of 45 of the PMLA, 2002”. There is nothing to suggest
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B.A. No. 10833 of 2023
that the Directorate of Enforcement had sought for custodial
interrogation of the petitioner in the captioned case. If, at all,
such a necessity arose the only remedy for the Investigating
Agency is to seek for such custody by making an application
before the Special Court. This view has been taken in the case
of “Tarsem Lal vs. Directorate of Enforcement Jalandhar Zonal
Office” (supra).
17. The record suggests that the prosecution
complaint was filed on 01.09.2023 and cognizance was taken
on 04.09.2023. The petitioner who was already in custody in
connection with ECIR Case No. 01/2023 had filed an
application on 16.09.2023 under Section 88 Cr.P.C. read with
Section 170 Cr.P.C. which however was rejected on
27.09.2023. A similar plea was taken by the petitioner when
he had moved for grant of bail before the learned trial court in
Misc. Criminal Application No. 3230 of 2023 which however
was dismissed vide order dated 03.11.2023.
18. The learned trial court in both the orders had
primarily concentrated on the merits of the case and as to
whether the twin conditions required u/s 45 of the PMLA,
2002 have been fulfilled or not. The pre-dominant element of
the case as discussed above has not been appropriately
considered by the learned trial court.
19. It is also to be noted as an additional feature of
this case that the petitioner is in custody since 27.09.2023
and the trial has not yet commenced and there is a least
possibility of the trial being concluded in the near future. In
this connection reference is made to the case of “Ramkripal
Meena Versus Directorate of Enforcement” in Special Leave to
Appeal (Crl.) No. 3205/2024, wherein it has been held as
follows:
“7. Adverting to the prayer for grant of bail in
the instant case, it is pointed out by learned
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counsel for ED that the complaint case is at the
stage of framing of charges and 24 witnesses
are proposed to be examined. The conclusion of
proceedings, thus, will take some reasonable
time. The petitioner has already been in custody
for more than a year. Taking into consideration
the period spent in custody and there being no
likelihood of conclusion of trial within a short
span, coupled with the fact that the petitioner is
already on bail in the predicate offence, and
keeping in view the peculiar facts and
circumstances of this case, it seems to us that
the rigours of Section 45 of the Act can be
suitably relaxed to afford conditional liberty to
the petitioner. Ordered accordingly.”
20. Thus on consideration of the circumstances
noted above, I am inclined to grant bail to the petitioner. The
petitioner is, therefore, directed to be released on bail on
furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand
only) with two sureties of the like amount each, to the
satisfaction of learned Additional Judicial Commissioner-I-
cum-Special Judge, PMLA, Ranchi in connection with ECIR
Case No. 05/2023, arising out of ECIR/RNZO/10/2023.
21. This application is allowed.
(Rongon Mukhopadhyay, J.)
Alok/AFR
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