The powers of the High Court under Section 439 Cr.P.C. to grant bail are restricted by the limitations engrafted in Section 45 of the PML Act, which imposes mandatory conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA.

Joymalya Bagchi, J.

1. Leave is granted to correct the cause title in the supplementary affidavit.

2. This application for bail has been preferred on behalf of the petitioner who is in custody for 268 days. It appears that an initial complaint was filed on behalf of the enforcement directorate against the accused company and its directorate on 24.08.2015. Cognizance was taken thereon under Section 3 read with Section 17(1)(2) of Prevention of Money Laundering Act, 2002 (hereinafter referred to as PML Act) read with Section 4 of the said Act and leave was given to conduct further investigation.

3. Pursuant to further investigation the petitioner who is a senior field officer of the accused company was arrested and interrogated. In conclusion of further investigation, a supplementary complaint was filed against the petitioner and another accused, namely, Arun Mukherjee in addition to the earlier accused persons. The supplementary complaint was accepted and cognizance was taken thereon by order dated 18.08.2015.

4. Prayer for bail of the petitioner was rejected by the Special Court on 04.02.2016. Thereafter the petitioner has approached this Court.

5. Mr. Mukherjee, learned senior counsel appearing for the petitioner submits that he is in custody for 268 days and his involvement did not transpire in the course of the initial investigation. Materials collected in the course of subsequent investigation as recorded in the averments of the supplementary complaint also shows that the petitioner was associated with the company on or after 2009 whereas the debentures floated and the investments made by the public with regard thereto were between 2001 to 2008. He also submitted amounts so collected have been subsequently refunded to the depositors. Hence, by no stretch of imagination the petitioner could have played any role in the alleged deception or violation of the provisions of law relating to such public offences on behalf of the accused company. He submitted that the petitioner is not an accused in respect of any scheduled offence under the provisions of the SEBI Actor otherwise and, therefore, prosecution of the petitioner under the PML Act was unwarranted. He further submitted that no property in the hand of the petitioner was attached in exercise of powers under Section 5 of the Act so as to indicate he is directly or indirectly connected with the proceeds of crime of any scheduled offence. Accordingly, no case has been made out against the petitioner in respect of the offences under PML Act.

6. He further submitted that the powers of this Court under Section 439 Cr.P.C. are not trammeled by the restrictions engrafted in Section 45 of the PML Act and, therefore, there is no embargo in granting bail to the petitioner in view of the period of detention and the extent of his complicity in the alleged crime.

7. He further criticized the procedure followed by the directorate in filing a supplementary complaint and the Special Court taking cognizance thereon. He vehemently argued that there cannot be a second cognizance of the self-same offence and cognizance of an offender is alien in criminal law. He further submitted that in view of the fact that the second complaint does not disclose the involvement of the petitioner in respect of any scheduled offence or as no proceeds of crime were attached in his hands. There is no embargo in granting of bail to the petitioner bearing in mind the fact that the investigation is complete and there is hardly any prospect of commencement of the trial in the near future.

8. Per contra, Mr. Chanda, learned Additional Solicitor General submitted that for invoking Section 3 of the PML Act against an accused prosecution of the said accused for a scheduled offence is not a sine qua non. The words used in Section 3 of the PML Act is wide enough to include all abettors and/or conspirators who are involved in secreting the proceeds of crime arising out of a scheduled offence. Prima facie, materials have