The appellant was arrested on 02.12.2022 in connection with the Crime No ECIR/RPZ0/09/2022 dated 29.09.2022, registered at the Police Station/Investigating Agency – Directorate of Enforcement, Zonal Office Raipur, Chhattisgarh, for the offences punishable under Sections 186, 204, 353, 384, 120-B of IPC read with Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (for short “PML Act”).
RPZO/09/2022 on the basis of the said FIR registered against the said accused – Suryakant Tiwari. 01.2023 The Special Court rejected the bail application of the appellant.
When the judgment in the bail application was awaited in the High Court, the Karnataka Police filed the charge-sheet against the accused – Suryakant Tiwari in respect of the FIR No 129/2022 for the offence under Sections 204 and 353 of IPC, clarifying therein that “accused found to have committed offence under Section 384 of IPC with his henchmen at Chhattisgarh State for which the report would be prayed to Chhattisgarh Police through proper channel……..”.
The appellant also had framed the questions of law ‘C’ & ‘E’ and had raised the grounds ‘C’ & ‘D’ in that regard in the SLP for assailing the impugned order, emphasizing that the High Court had committed gross error in not considering the said Chargesheet dated 08.06.2023 and the Cognizance order dated 16.06.2023.
Also Read: https://newslaw.in/supreme-court/high-court-dismisses-bail-application-in-corruption-case/
Since, the learned senior counsel stated that the said charge-sheet and the cognizance order were produced and were also brought to the notice of the High Court, this Court had directed that the appellant or her concerned advocate on her behalf may file an affidavit in that regard, by passing the order on 09.10.2023. Counsel appearing on behalf of ED, the same was filed with the registry of the Hon’ble High Court on 19.06.2023 and was thereafter, mentioned before the Ld. Single Judge of the Hon’ble High Court by the Petitioner’s counsel, and these facts were orally brought to the knowledge of the Ld. Since, the appellant had conveniently remained silent in the above affidavit as to whether the Chargesheet dated 08.06.2023 was in fact produced before the High Court or not, the Court again raised the query as to when the said Chargesheet dated 08.06.2023 was produced before the High Court.
Rule 3 of the said Order XXI mandates inter alia that the SLPs shall be confined only to the pleadings before the court/tribunal whose order is challenged and that the petitioner may produce copies of such petition/documents which are part of the record in the case before the court/tribunal below, if and to the extent necessary to answer, the question of law arising for consideration in the petition, or to make out the grounds urged in the SLP, as Annexures to the petition. Though the said Chargesheet and the Cognizance order were neither pleaded nor argued before the High Court, an impudent attempt was sought to be made by alleging all throughout in the synopsis, list of dates, questions of law and the grounds in the SLP that the High Court had grossly erred in not appreciating the said documents. It hardly needs to be emphasized that a very high standard of professionalism and legal acumen is expected from the advocates particularly designated Senior advocates appearing in the highest court of the country so that their professionalism may be followed and emulated by the advocates practicing in the High Courts and the District Courts.
In the instant case, though the Court had specifically drawn the attention of all the learned counsels appearing for the appellant with regard to the ex-facie inconsistencies appearing in the grounds mentioned in the SLP and in the certificate and affidavit filed at the bottom of the SLP, as per the order dated 09.10.2023, again an attempt was sought to be made by filing a smartly drafted affidavit, avoiding to answer the query raised by the court.
The charge-sheet in the FIR No 129/2022 filed against the accused-Suryakant Tiwari having been filed by the Karnataka Police for the offence under Sections 204 and 353 only, the proceedings in relation to Sections 384 and 120-B, IPC could not be said to have survived as regards the said charge-sheet. Raju appearing for the respondent-ED made following submissions: (i) The prosecution during the course of investigation has collected substantive evidence showing strong nexus between the appellant and the other accused, and the documents produced in the Court indicate prima facie material establishing money laundering at the hands of the appellant.
Suryakant Tiwari used to extort money against the coal delivery orders, at the connivance of the senior bureaucrats in Chhattisgarh including the appellant, and how the said money extorted was being utilized towards the payment of bribes and acquisition of immovable properties for the bureaucrats including the appellant. Manish Upadhyay who was a relative of the Suryakant Tiwari, and who was a close associate of the appellant, was used as a layer of protection for the cash dealings between Suryakant Tiwari and the appellant. As regards the twin conditions for the grant of bail contained in Section 45(1), it has been held by the Three-Judge Bench in Vijay Madanlal (supra) that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering. Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences. As stated hereinabove, the supplementary complaint was filed against the appellant along with the other accused on 30.01.2023, in which the summary of investigative findings against each of the accused persons have been recorded in Para 8 thereof. The fact that Suryakant Tiwari had personal & close official dealings with her and was carrying her instructions to the Officers, made it possible for Suryakant Tiwari to also command senior District level officers. As per the findings of the investigation, it can be inferred that Saumya Chaurasia has directly acquired proceeds of crime as defined under section 2(l)(u) of the PMLA, 2002 to an extent of more than Rs. Manish Upadhyay was inserted in as an extra layer of protection for cash dealings between Mr. ED investigation has established that Mrs. Suryakant Tiwari to Manish Upadhyay, proxy of the appellant; the utilization of proceeds of crime and acquisition of properties by the appellant in the name of her mother Shanti Devi and cousin Mr. Similar provisions of Section 437 of the Code of Criminal Procedure, 1973 have been interpreted by this Court to mean that the statutory provision does not mean that person specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail.
No doubt the courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements and made scapegoats for committing such Crimes, nonetheless, the courts also should not be oblivious to the fact that nowadays the educated and well placed women in the society engage themselves in the commercial ventures and enterprises, and advertently or inadvertently engage themselves in the illegal activities.
In essence, the courts should exercise the discretion judiciously using their prudence, while granting the benefit of the first proviso to Section 45 PMLA to the category of persons mentioned therein.
Section 384 and 120 B having been dropped from the chargesheet submitted against the accused Suryakant Tiwari in connection with the FIR No 129 of 2022 registered at Kadugodi Police Station Bengaluru, and the ACJM Bengaluru vide the order dated 16.06.2023 having taken cognizance for the offence punishable under Section 204 and 353 IPC only, which are not the scheduled offences under the PMLA Act, no scheduled offence survived at the time of passing of the impugned order and that the proceedings were/are without jurisdiction. That apart, it is very much pertinent to note that when the FIR is registered under particular offences which include the offences mentioned in the Schedule to the PMLA, it is the court of competent jurisdiction, which would decide whether the Charge is required to be framed against the accused for the scheduled offence or not. In the instant case, there is neither discharge nor acquittal nor quashing of the criminal case by the court of competent jurisdiction against Suryakant Tiwari in the predicate/ scheduled offence.
Appeal stands dismissed accordingly.
Case Title: SAUMYA CHAURASIA Vs. DIRECTORATE OF ENFORCEMENT
Case Number: Crl.A. No.-003840-003840 / 2023
