Delhi High Court: In a case wherein the applicant had approached this Court seeking anticipatory bail since the applicant apprehended his arrest in connection with a Enforcement Case Information Report (‘ECIR) registered by the Enforcement Directorate (‘ED’) under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (‘PMLA Act’), a Single Judge Bench of Chandra Dhari Singh, J.* noted that the applicant had not yet been implicated in any Scheduled Offences as provided under the PMLA and in fact, the ECIR did not even find mention of the name of the applicant or any of the M3M Companies.
Background
In 2018-2020, FIRs were registered by certain allottees of two separate residential projects, undertaken by the IREO Group, that is, IREO (P) Ltd. and IREO FiveRiver (P) Ltd., respectively, on the ground of delay in handing over/delivery of possession of apartments/ commercial units. There were no specific allegations against the Applicant, his family members, the M3M Group, or any of its entity in the said FIRs. During investigation into the said FIRs against the IREO Group of Companies, the respondent registered the ECIR, in which the applicant or the M3M Group of Companies were not arrayed as accused and no allegations were levelled against them. The applicant had never been issued a summon by the respondent.
In 2023, the respondent along with other officials carried out a raid on properties belonging to the M3M and its Group Companies. In pursuance of the raids and inquiry, the respondent also seized numerous assets, including cars, cash, jewellery etc. and issued letters to bankers of M3M and its Group Companies directing that various bank accounts of the Company and its group concerns be marked as ‘debit freeze’ accounts. The applicant, along with Roop Kumar Bansal and Basant Bansal and M3M, through its authorized representative, approached this Court under Article 226 of the Constitution seeking protection against the respondent. Therefore, the applicant had grave apprehension that the respondent would arrest him.
Analysis, Law, and Decision
The Court noted that the respondent contended that the applicant should have approached the Court of Sessions first for the Bail Application. The Court, after referring to Section 438 of Criminal Procedure Code, 1973 (‘CrPC’) opined that the provision gave concurrent jurisdiction to both the Court in entertaining an Anticipatory Bail Application. There was no bar on approaching this Court directly under Section 438 of CrPC for the purpose of bail and it was based upon the discretion of the Applicant which Court they wanted to approach since both the Court had concurrent jurisdiction and the same could not be restricted by construing the provision of Section 438 of CrPC narrowly. The Court further opined that the provision contained in Section 438 of CrPC must be saved, not jettisoned. Therefore, the Court opined that this Court had the jurisdiction to entertain the bail application under Section 438 of CrPC even when the applicant had not approached the Court of Sessions first.
The Court observed that to link any accused with the offences under the PMLA, the twin test must be satisfied. In the present case, the Court noted that the respondent had yet not been able to show whether that the applicant had been charged with or even linked to the Scheduled Offences as provided under the PMLA.
The Court relied on Siddharth Varadarajan v. State of UP, 2020 SCC OnLine All 620, wherein the Court had enunciated the jurisprudence of Section 438 of CrPC and had observed that:
“the provision of anticipatory bail could be invoked by a person who had a ‘reasonable apprehension’ that he might be arrested for committing a non-bailable offence. The main purpose for incorporating Section 438 in CrPC was that the liberty of an individual should not be unnecessarily jeopardized. The grounds on which apprehension of arrest was based must be capable of being examined by the Court objectively. Then alone the Court could determine whether the applicant had reason to believe that he would be arrested. Therefore, Section 438 CrPC could not be invoked, unless there was some material based on which the Court could conclude that the apprehension of the petitioner for the arrest was genuine”.
The Court further relied on Sushila Aggarwal v. State of NCT of Delhi, (2020) 5 SCC 1 wherein the Supreme Court observed that “arrest should be done in the rarest of the rare case. Even if the authorities were not satisfied then jail was the last weapon in the hands of the Authorities”.
The Court noted that in the present case, the applicant had never been summoned and on all the occasions the representative on their behalf appeared and cooperated in the investigation. Further, the respondent had already seized numerous assets, including cars, cash, jewelry, etc. and issued letters to bankers of M3M and its Group Companies directing that various bank accounts of the Company and its group concerns be marked as ‘debit freeze’ accounts. Moreover, the applicant had not yet been implicated in any Scheduled Offences as provided under the PMLA and in fact, the ECIR did not even find mention of the name of the applicant or any of the M3M Companies.
The Court further noted that the primary accused in the matter, the promoter of IREO Group, had already been granted regular bail in April 2022 and the same had not been challenged by the respondent. Therefore, the Court opined that in the interest of justice as well as considering the entirety of the matter and the mandate of Article 21 of the Constitution, the applicant might be granted interim protection till the next date of hearing. Thus, the Court opined that if the applicant was arrested, he should be released on bail.
The matter would next be listed on 5-7-2023 before the Roster Bench.
[Pankaj Bansal v. State (NCT of Delhi), 2023 SCC OnLine Del 3590, decided on 9-6-2023]
*Judgment authored by: Justice Chandra Dhari Singh
Advocates who appeared in this case:
For the Applicant: Dr. Abhishek Manu Singhvi, N. Hariharan, Senior Advocates; Sonali Jaitley Bakshi, Jayesh Bakshi, Vijay Nair, Sanjay Abbot, Rajat Juneja, Ravi Tyagi, Mayank Mishra, Manmilan Sidhu, Ankit Tyagi, Sudiksha Saini, Manoranjan Sharma, Anmol Kumar, Saqib Ansari, Advocates;
For the Respondents: Zoheb Hossain, Special Counsel; Vivek Gurnani, Hasnain Khawaja, Kartik Sabharwal Advocates; Saket Singh, DD.
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