Cognizance Of Complaint Taken After 2 Yrs Not Ground For Considering Entitlement Of Anticipatory Bail: Chhattisgarh High Court

Refusing to grant anticipatory bail under the Prevention of Money Laundering Act, 2002, the Chhattisgarh High Court held that merely because the case is registered on complaint and cognizance of the complaint is taken by the Court after about two years, will in itself is not a ground considering entitlement of anticipatory bail. Still, it is to be considered on the merits of each case.

The matter was heard by Justice Parth Prateem Sahu, who observed,

"Economic offence is deep rooted. It is committed with cool mind, calculation and deliberate design with an eye on personal profit regardless of consequences to the community."

An application was filed under Section 438 of the Criminal Procedure Code for grant of anticipatory bail to applicants apprehended under Section 45 of the Prevention of Money Laundering Act, 2002.

In the prosecution's case, information was received from the Income Tax Department based on which an FIR was registered by the Economic Offence Wing/ Anti Corruption Bureau, Raipur for offence under Section 13 (1) (e) and Section 13 (2) of the Prevention of Corruption Act, 1988. During the search, one Babulal was found in possession of huge cash, jewelry, and 230 bank pass-books of different persons, etc. The investigation found the opening of 446 bank accounts through 13 shell companies.

Advocate Chirag Madan, appearing for the applicants, submitted that an investigation was initially carried out. An FIR was registered against the said person and his chartered accountant under Sections 420, 468, and 471 of the Indian Penal Code. Upon further investigation, the alleged involvement of applicants was also revealed. A complaint case was filed before the Special Court under PMLA, 2002.

It is argued that there is no specific case against the applicants, and they have no relation to the opening of 446 bank accounts or creating 13 shell companies. Moreover, as the applicants have participated in the investigation and their statements under Section 50 of the PMLA, 2002 have been recorded, there is no chance of their fleeing away.

The applicant argued that Section 45 of the PMLA, 2002, has been struck down by the Supreme Court through its decision in Nikesh Tarachand Shah v. Union of India. Section 45 imposes a twin condition for grant of bail under the PMLA, 2002.

Lastly, it was stated that complaint was filed in the year 2018 and cognizance was taken only on 21.1.2021. Hence, applicants may be enlarged on anticipatory bail.

Advocate Saurabh K. Pandey, appearing for the non-applicant, opposed the grant of anticipatory bail, arguing that the applicants were the officials/employees of a bank where alleged 446 benami bank accounts were opened, in which huge amounts were deposited. It was further argued that Section 3 of the Act of 2002 defines a money laundering offense, exhaustive and includes concealment or possession or acquisition or use of money either directly or indirectly.

It was argued that the Nikesh Tarachand case is being interpreted wrongly to note that Section 45 has been struck down. Section 45 of the PMLA, 2002 and its amended version through the 2018 amendment is challenged before the Supreme Court. Therefore, unless and until amended provision is declared to be unconstitutional, it cannot be said to be inapplicable. The said provision imposes twin conditions for the release of the accused under the said Act.

Findings of the Court

The Court partially agreed with the argument that the Nikesh Tarachand judgment strikes down Section 45 of the PMLA 2002. The said ruling had partly struck down Section 45 (1) so far as it imposed two further conditions for the grant of bail to be unconstitutional as it violates Articles 14 & 21 of the Constitution of India for the reasons mentioned therein.

Thereafter, however, the provision has been amended and the twin conditions have been made applicable for the persons involved in committing an offence under the said legislation. Leniency is shown under proviso of granting bail to persons under 16 years of age or a woman, or sick or infirm or is accused either of his own along with other co-accused of money involving a sum of less Rs. 1 crore.

The same has been put to challenge and is pending consideration before the Supreme Court.

At the outset, the Court opined,

"law framed by legislature is having presumption of its constitutionality, unless and until Constitutional Courts declared such law to be unconstitutional, it will have its force and therefore in the opinion of this Court, as twin conditions are still there in the Statute book after amendment in Section 45 of the Act of 2002, underlined principle and rigor of Section 45 of the Act of 2002 may get triggered once prayer for anticipatory bail is made in connection with offence under the Act of 2002."

Considering the entire facts and circumstances of case, nature of allegations levelled against applicants; the Court denied relief.

Case Title: Pawan Kumar Agrawal & Anr v. Enforcement Directorate through I.O

Citation: 2022 LiveLaw (Chh) 15

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