2023 Supreme(Del) 1814

IN THE HIGH COURT OF DELHI AT NEW DELHI
Chandra Dhari Singh, J.
Basant Bansal – Appellant
Versus
State (Govt. of NCT of Delhi) & Ors. – Respondents
Bail Appln. 2030 of 2023, Crl. M.A. Nos. 16388-89 of 2023
Decided On : 09-06-2023

The High Court has concurrent jurisdiction with the Court of Sessions to entertain an anticipatory bail application under Section 438 of the CrPC. The twin conditions under Section 45 of the PMLA are not absolute and can be relaxed in cases where the accused has not been charged with or linked to the Scheduled Offences under the PMLA. An accused has a reasonable apprehension of arrest if the ED has issued summons to the accused and the accused has been summoned to appear before the Investigating Officer on multiple occasions.

Headnote:

ANTICIPATORY BAIL - PMLA - JURISDICTION - CONCURRENT JURISDICTION OF HIGH COURT AND COURT OF SESSIONS - TWIN CONDITIONS - REASONABLE APPREHENSION OF ARREST - SECTION 438 CRPC - SECTION 45 PMLA - SECTION 438(1) CRPC - SECTION 439(2) CRPC - SECTION 27 EVIDENCE ACT - ARTICLE 21 CONSTITUTION OF INDIA.

Fact of the Case:

The Applicant, a real estate developer, approached the High Court seeking anticipatory bail in connection with an ECIR registered by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA). The ED alleged that the Applicant and his family members were involved in a money laundering scheme involving the diversion of funds from IREO Group to M3M Group through shell companies. The Applicant contended that he had not been named in the ECIR or in the prosecution complaint filed by the ED, and that he had fully cooperated with the investigation. The ED opposed the bail application, arguing that the Applicant should have approached the Court of Sessions first and that the twin conditions under Section 45 of the PMLA were not satisfied.

Finding of the Court:

The High Court held that it had concurrent jurisdiction with the Court of Sessions to entertain the bail application under Section 438 of the Code of Criminal Procedure (CrPC). The Court further held that the twin conditions under Section 45 of the PMLA were not absolute and could be relaxed in cases where the accused had not been charged with or linked to the Scheduled Offences under the PMLA. The Court also noted that the Applicant had not been named in the ECIR or in the prosecution complaint filed by the ED, and that he had fully cooperated with the investigation. Accordingly, the Court granted the Applicant interim protection and directed him to surrender his passport, cooperate with the investigation, and appear before the Investigating Officer as and when required.

Issues: 1. Whether the High Court had jurisdiction to entertain the bail application under Section 438 of the CrPC. 2. Whether the twin conditions under Section 45 of the PMLA were applicable in the present case. 3. Whether the Applicant had a reasonable apprehension of arrest.

Ratio Decidendi: 1. The High Court held that it had concurrent jurisdiction with the Court of Sessions to entertain the bail application under Section 438 of the CrPC. The Court relied on the fact that Section 438(1) of the CrPC gives concurrent jurisdiction to both the High Court and the Court of Sessions to entertain an anticipatory bail application. The Court also noted that there is no bar on approaching the High Court directly under Section 438 of the CrPC for the purpose of bail. 2. The High Court held that the twin conditions under Section 45 of the PMLA were not absolute and could be relaxed in cases where the accused had not been charged with or linked to the Scheduled Offences under the PMLA. The Court relied on the judgment of the Supreme Court in Vijay Agrawal v. Directorate of Enforcement, wherein it was held that the twin conditions under Section 45 of the PMLA do not impose an absolute restraint on the grant of bail. 3. The High Court held that the Applicant had a reasonable apprehension of arrest. The Court relied on the fact that the ED had issued summons to the Applicant and his family members, and that the Applicant had been summoned to appear before the Investigating Officer on multiple occasions.

Final Decision: The High Court granted the Applicant interim protection and directed him to surrender his passport, cooperate with the investigation, and appear before the Investigating Officer as and when required.