JUDGMENT

SANDEEP K.SHINDE J. - This application under Section 439(2) of the Code of Criminal Procedure, 1973 ('Cr.P.C' for short) challenges the order dated 11th August, 2021 passed by the learned Special Judge designated under the PMLA Act at Greater Bombay for Bombay, granting bail in PMLA Case, ECIR 14/MZO/2013 to the respondent.

2. Applicant Directorate of Enforcement Department of Revenue, Ministry of Finance, Government of India is, the statutory Investigating Agency established in India, and entrusted with the task and authority to implement and enforce the provisions of the Prevention of Money Laundering Act, 2002 (Hereinafter referred to as "PMLA Act").

3. Heard Mr. Anil Singh, the learned Additional Solicitor General and Mr. Rajiv Chavan, the learned Senior Counsel for the respondent no.1.

4. Mr. Chavan the learned Senior Counsel for the respondent no.1 has raised preliminary issue as to the maintainability of the application fled under Section 439(2) of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) and would contend that provisions of Section 439(2) of the Cr.P.C. cannot apply in a case where an order for release of bail has not been availed of.

5. Mr. Anil Singh, the learned Additional Solicitor General for applicants contended that;

(i) The Trial Court while granting bail relied on the irrelevant material although prima-facie, case of money laundering has been made out against the respondent no.1;

(ii) The learned Court has not recorded, what were the fresh grounds which persuade it to take a view diferent from one taken in the earlier application;

(iii) after rejecting frst bail application on 18 th June, 2021, there was no change in circumstance to review its frst order

(iv) that twin conditions of Section 45(1) of the PMLA Act were not adhered to by the learned Judge while granting bail to the respondent no.1.

6. Two points of law of some consequences have fallen for decision in this application;

(i) Whether Section 439(2) of the Cr.P.C. can have no application unless accused is released from the 'custody' ?

(ii) Whether decision in Nikesh Tarachand Shah 2016(11) SCC 1 has lost its significance because of amendment in Section 45(1) of the PMLA Act AND

(iii) Whether Trial Court while granting bail, acted upon the irrelevant material and ignored the relevant material ?

FACTUAL MATRIX-PROSECUTION CASE :

7. Briefy stating, case of the prosecution is that the MRA Marg Police Station registered First Information Report No.216 of 2013 dated 30th September, 2013 under Sections 120B, 467 and 471 of the Indian Penal Code, 1861 ('IPC' for short) against M/s. National Spot Exchange Limited (hereinafter referred to as 'NSEL'), its directors and key officials of NSEL, 25 defaulters of NSEL and others on a complaint fled by the Shri Pankaj Ramnaresh Saraf. He stated that he was to receive payments against trader's contracts offered by the NSEL for various commodities; that he was cheated by NSEL by creating false impression of being proper spot exchange with correct risk management systems in order to induce him to trade on the spot exchange. He would allege that genuine investors were defrauded of their investments by way of serious misappropriations since NSEL allowed trading on the commodities of sellers without ensuring goods of appropriate quantity and quality stored in exchange controlled warehouses, which resulted in thousands of investors trading in "non-existent goods". The accused persons hatched a criminal conspiracy to defraud the investors, induced them to trade on platform of spot NSEL, created forged documents like bogus warehouse receipts, falsifed the accounts and thereby committed criminal breach of trust in respect of Rs.202 Lakhs of the complainant and Rs.5600 Crores of others approximately 13, 000 investors.

8. Prosecution case is that, suspect persons have committed offence punishable under Section 120B, 467, 471 of the Indian Penal Code, 1860, which are Scheduled Offences under Paragraph 1 o