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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
HON'BLE SHRI JUSTICE MILIND N. JADHAV
Kapil Wadhawan - Appellant
Versus
Directorate Of Enforcement - Respondent
BAIL APPLICATION NO.2350 OF 2024
Decided On : 12-02-2025
(A) Code of Criminal Procedure, 1973 - Sections 436-A, 439, and 482 - Indian Penal Code, 1860 - Section 120-B read with 420 - Prevention of Money Laundering Act, 2002 - Section 3 - Bail applications filed by accused incarcerated for almost 4 years and 9 months - Court emphasized the right to speedy trial under Article 21 of the Constitution, noting that the trial had not commenced and the applicants had undergone more than half of the maximum sentence of 7 years - The PMLA Court's denial of bail was deemed inappropriate as the delay in trial was not solely attributable to the applicants. (Paras 4, 22, 24, 26)
(B) Right to Speedy Trial - The court reiterated that the right to a speedy trial is a fundamental right under Article 21, and prolonged incarceration without trial violates this right. (Paras 12, 16)
(C) Economic Offences - The court acknowledged that economic offences require a different approach in bail considerations, but emphasized that the statutory provisions must be adhered to. (Paras 5.1, 5.2, 5.3)
Facts of the case:
The applicants were arrested on 14.05.2020 in connection with a money laundering case and had been in custody for nearly 4 years and 9 months without the trial commencing.
Findings of Court:
The court found that the applicants were entitled to bail under Section 436-A of CrPC due to their prolonged incarceration and the lack of progress in the trial.
Issues: The main issues included the applicability of Section 436-A of CrPC and the justification for the delay in trial.
Ratio Decidendi: The court ruled that the applicants' right to a speedy trial was violated due to the extended period of incarceration without trial, and thus they were entitled to bail.
Result: Bail applications allowed.
JUDGEMENT :
[MILIND N. JADHAV, J.]
1. Heard Mr. Desai, learned Senior Advocate for Applicants; Mr. Venegavkar, learned Advocate for Respondent – ED and Mr. Dedhia, learned Advocate for Respondent – State.
2. The twin Bail Applications have been filed under Section 436-A read with Sections 439 and 482 of Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking Bail in connection with ECIR/MBZO- I/03/2020 dated 07.03.2020 registered with Central Bureau of Investigation (‘CBI’), EO-I, New Delhi for offences punishable under Sections 120-B read with 420 of the Indian Penal Code, 1860 (for short ‘IPC’) and Section 3 of the Prevention of Money Laundering Act, 2002 (for short ‘PMLA’). There are in all 36 accused in the matter and Applicants before me are arraigned as Accused Nos.9 and 10 in the crime incarcerated since 14.05.2020 i.e. almost 4 years 9 months. Since facts are common as also charges qua both accused arising out of the same ECIR, both Applications are disposed of by this common order.
3. Briefly stated on 07.03.2020 CBI filed FIR bearing No. RC 219 of 2020 E0004 for offences under Sections 120-B read with 420 of the IPC and on the basis of that FIR, on the same date i.e. 07.03.2020 Directorate of Enforcement (‘ED’) registered ECIR/MBZO- I/03/2020 under Section 3 of the PMLA. On 14.05.2020, Applicants were arrested by the ED in connection with ECIR/MBZO- I/03/2020.
3.1. On 13.07.2020 Applicants filed Applications for default bail under Section 167(2) of the Cr.P.C. before the Special Court established under the PMLA (hereinafter referred to as ‘PMLA Court’) and on the same date ED filed 1st supplementary prosecution complaint before the PMLA Court, inter alia, against present Applicants before stating that investigation was completed with respect to the properties mentioned in the principal complaint and investigation with respect to other properties / transactions / persons / entities was underway.
3.2. By order dated 14.07.2020 the PMLA Court rejected Applicants’ Application for default bail which was assailed by the Applicants before this Court and this Court by order dated 20.08.2020 granted default bail to the Applicants. The Order dated 20.08.2020 was challenged by the ED before the Supreme Court and the Supreme Court stayed the operation of order dated 20.08.2020 pending the Appeals.
3.3. On 14.03.2022 ED filed 2nd supplementary prosecution complaint citing pendency of investigation in respect of other properties / transaction / persons/ entities and the 3rd supplementary prosecution complaint was filed by ED on 05.08.2022 keeping open further investigation in respect of other properties / transaction / persons/ entities. In this complaint, ED has relied upon the evidence of total 51 witnesses.
3.4. By order dated 10.05.2023 passed by the Supreme Court in Criminal Appeal Nos.701-702 of 2020 Applicants were granted interim bail for a period of 3 months initially and the same has been extended from time to time.
3.5. On 20.07.2023 ED filed draft charges before the PMLA Court.
3.6. On 13.11.2023 Applicants filed Bail Application under Section 436-A of the CrPC before the PMLA Court which was rejected by the PMLA Court by its order dated 10.05.2024. Hence the Applicants are before this Court seeking Bail under Section 436-A of the CrPC.
4. Mr. Desai, learned Senior Advocate for the Applicants has streamlined his submissions under three main grounds. Firstly, Mr. Desai has argued that the maximum punishment which can be imposed on Applicants upon conviction is 7 years however Applicants have already undergone pre-trial incarceration of almost a period of 4 years and 9 months. He would submit that it is a settled position of law that Section 436-A of the CrPC, [Inserted in the Code by CrPC (Amendment) Act, 2005 (25 of 2005)] recognising the constitutional right to speedy trial of the accused – undertrial emanating from Article 21 of the Constitution of India. He would submit that the same is equally applicable to offences un
The right to a speedy trial under Article 21 of the Constitution mandates that an undertrial cannot be detained beyond half of the maximum sentence without trial, warranting bail under Section 436-A ....
The right to a speedy trial under Article 21 mandates release under Section 436-A of the CrPC after serving half of the maximum imprisonment period, regardless of the nature of the offence.
The right to a speedy trial under Article 21 of the Constitution mandates that an undertrial cannot be detained beyond one-half of the maximum imprisonment period without trial, leading to bail being....
The right to speedy trial is fundamental under Article 21, and prolonged incarceration without trial necessitates bail, emphasizing that bail is the rule and jail is the exception.
The court emphasized that bail is the rule and jail is the exception, particularly in cases of long incarceration without trial, invoking the right to speedy justice under Article 21.
Prolonged pre-trial detention violates the fundamental right to a speedy trial under Article 21, necessitating bail for the accused.
Prolonged incarceration without trial violates the right to speedy trial under Article 21, warranting bail as the rule and refusal as the exception.
The right to a speedy trial under Article 21 of the Constitution prevails, allowing bail under Section 436A of the CrPC despite statutory restrictions in the PMLA.
The principle that bail is the rule and jail is the exception is reinforced, emphasizing the right to a speedy trial and personal liberty under Article 21 of the Constitution.
The principle that bail is the rule and jail is the exception is reaffirmed, especially when an accused has been in custody for an extended period without trial progress.
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