Directorate Of Enforcement vs Aditya Tripathi

Directorate of Enforcement ...Appellant(s)

Versus

Aditya Tripathi …Respondent(s)

With

CRIMINAL APPEAL NO. 1402 OF 2023

JUDGMENT

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the

impugned judgment(s) and order(s) passed by Signature Not Verified Digitally signed by

the High Court for the State of Telangana at Neetu Sachdeva Date: 2023.05.12 15:47:39 IST Reason: Page 1 of 16 Hyderabad in Criminal Petition Nos.

1146/2021 and 1147/2021, by which, the

High Court has allowed the said bail

applications and has directed to enlarge

respective respondent No. 1 on bail in

connection with the offences under the

Prevention of Money Laundering Act, 2002

(hereinafter referred to as the PML Act, 2002)

investigated by the Enforcement Directorate,

Hyderabad in F. No. ECIR/HYZO/36/2020 on

the file of Metropolitan Sessions Judge,

Hyderabad, the Directorate of Enforcement

has preferred the present appeals.

2. That an FIR No. 12/2019 dated 10.04.2019

was registered by the Economic Offences

Wing, Bhopal, naming about 20

persons/companies as accused for the

offences punishable under Sections 120-B,

Page 2 of 16 420, 468 and 471 of IPC, Section 66 of the

Information Technology Act, 2000 and

Section 7(c) read with Section 13(2) of the

Prevention of Corruption Act, 1988. It was

found in the preliminary enquiry that e-

Tender Nos. 91,93, and 94 for total works

amounting to Rs. 1769.00 crores of Madhya

Pradesh Water Corporation were tempered to

change the price bid of M/s GVPR Engineers

Limited, M/s The Indian Hume Pipe Company

Limited and M/s IMC (sic) Project India

Limited to make them the lowest bidders.

Subsequent to the registration of the FIR,

Economic Offences Wing, Bhopal conducted

investigation and filed the chargesheet before

the competent court on 04.07.2019. That on

study of chargesheet, it was found that the

accused have also committed the offences

Page 3 of 16 under the PML Act, 2002 as the offences for

which they were chargesheeted, namely,

Sections 120-B, 420, 468 and 471 of IPC and

Section 7 read with Section 13(2) of the PC

Act, are also scheduled offences and

therefore, the Enforcement Directorate,

Hyderabad had initiated money laundering

investigation in the F. No.

ECIR/HYZO/36/2020. That respective

respondent No. 1 herein in respective appeals

were arrested on 19.01.2021, therefore, they

filed the present bail applications before the

High Court to enlarge them on bail in

connection with the aforesaid

investigation/case being investigated by the

Enforcement Directorate. By the impugned

orders, the High Court has directed to enlarge

respondent No. 1 in respective appeals on

Page 4 of 16 bail. The impugned orders passed by the

High Court enlarging respondent No. 1 in

respective appeals on bail in the case being

investigated by the Enforcement Directorate,

Hyderabad, are the subject matters of present

appeals.

3. Shri K.M. Nataraj, learned ASG, has appeared

on behalf of the appellant – Enforcement

Directorate and Shri Rakesh Khanna and

Shri Aman Lekhi, learned Senior Advocates

have appeared on behalf of respective

respondent No. 1.

3.1 Shri Nataraj, learned ASG appearing on

behalf of the Enforcement Directorate has

submitted that in the facts and

circumstances of the case the High Court has

seriously erred in enlarging respective

respondent No. 1 – accused on bail. It is

Page 5 of 16 submitted that while enlarging respective

respondent No. 1 – accused on bail the High

Court has not properly appreciated Section

45 of the PML Act, 2002.

3.2 It is further submitted that the High Court

has not properly appreciated and/or

considered the seriousness of the offences

which are scheduled offences under the PML

Act, 2002.

3.3 It is submitted that the High Court has

enlarged respective respondent No. 1 on bail

solely on the ground that the investigation

has been completed and the chargesheet has

been filed. It is submitted that however, the

High Court has not properly appreciated the

fact that the investigation by the Enforcement

Directorate is still going on and therefore, it is

Page 6 of 16 wrong to say that the investigation has been

completed.

4. While opposing the present appeals, learned

Senior Advocate(s) appearing on behalf of

respective respondent No. 1 have vehemently

submitted that in the facts and

circumstances of the case, the High Court

has not committed any error in directing to

enlarge the accused on bail.

4.1 It is submitted that in the present case so far

as the impugned FIR is concerned i.e., for the

predicated offences others accused have been

acquitted/discharged.

4.2 It is further submitted that as the

investigation is over and the chargesheet has

been filed, the High Court has rightly

enlarged the accused – respective respondent

No. 1 on bail. It is submitted that as the

Page 7 of 16 accused are on bail since March, 2021, the

impugned orders passed by the High Court

may not be interfered by this Court at this

stage.

5. We have heard learned counsel appearing on

behalf of the respective parties at length.

6. At the outset, it is required to be noted that

respective respondent No. 1 – accused are

facing the investigation by the Enforcement

Directorate for the scheduled offences and for

the offences of money laundering under

Section 3 of the PML Act punishable under

Section 4 of the said Act. An

enquiry/investigation is still going on by the

Enforcement Directorate for the scheduled

offences in connection with FIR No. 12/2019.

Once, the enquiry/investigation against

respective respondent No. 1 is going on for the

Page 8 of 16 offences under the PML Act, 2002, the rigour

of Section 45 of the PML Act, 2002 is required

to be considered. Section 45 of the PML Act,

2002 reads as under: -

“45. Offences to be cognizable and non-bailable.— (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless—]

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along

Page 9 of 16 with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by—

(i) the Director; or

(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

[(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub-section (1) is in addition to the limitations under the Code of Criminal

Page 10 of 16 Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” By the impugned judgment(s) and order(s)

and while granting bail, the High Court has

not considered the rigour of Section 45 of the

PML Act, 2002.

6.1 Even otherwise, the High Court has not at all

considered the nature of allegations and

seriousness of the offences alleged of money

laundering and the offences under the PML

Act, 2002. Looking to the nature of

allegations, it can be said that the same can

be said to be very serious allegations of

money laundering which are required to be

investigated thoroughly.

6.2 Now so far as the submissions on behalf of

the respective respondent No. 1 that

respective respondent No. 1 were not named

Page 11 of 16 in the FIR with respect to the scheduled

offence(s) and/or that all the other accused

are discharged/acquitted in so far as the

predicated offences are concerned, merely

because other accused are

acquitted/discharged, it cannot be a ground

not to continue the investigation in respect of

respective respondent No. 1. An

enquiry/investigation is going on against

respective respondent No. 1 with respect to

the scheduled offences. Therefore, the

enquiry/investigation for the scheduled

offences itself is sufficient at this stage.

6.3 From the impugned judgment(s) and order(s)

passed by the High Court, it appears that

what is weighed with the High Court is that

chargesheet has been filed against respective

respondent No. 1 – accused and therefore, the

Page 12 of 16 investigation is completed. However, the High

Court has failed to notice and appreciate that

the investigation with respect to the

scheduled offences under the PML Act, 2002

by the Enforcement Directorate is still going

on. Merely because, for the predicated

offences the chargesheet might have been

filed it cannot be a ground to release the

accused on bail in connection with the

scheduled offences under the PML Act, 2002.

Investigation for the predicated offences and

the investigation by the Enforcement

Directorate for the scheduled offences under

the PML Act are different and distinct.

Therefore, the High Court has taken into

consideration the irrelevant consideration.

The investigation by the Enforcement

Page 13 of 16 Directorate for the scheduled offences under

the PML Act, 2002 is till going on.

7. As observed hereinabove, the High Court has

neither considered the rigour of Section 45 of

the PML Act, 2002 nor has considered the

seriousness of the offences alleged against

accused for the scheduled offences under the

PML Act, 2002 and the High Court has not at

all considered the fact that the investigation

by the Enforcement Directorate for the

scheduled offences under the PML Act, 2002

is still going on and therefore, the impugned

orders passed by the High Court enlarging

respective respondent No. 1 on bail are

unsustainable and the matters are required

to be remitted back to the High Court for

afresh decision on the bail applications after

Page 14 of 16 taking into consideration the observations

made hereinabove.

8. In view of the above and for the reasons

stated above, both these appeals succeed. The

impugned judgment(s) and order(s) passed by

the High Court in Criminal Petition Nos.

1146/2021 and 1147/2021 enlarging

respective respondent No. 1 – accused in

respective appeals on bail are hereby quashed

and set aside. That respective respondent No.

1 now to surrender before the competent

court having jurisdiction or before the

concerned jail authority within a period of

one week from today. The matters are

remitted back to the High Court to consider

the bail applications afresh in light of the

observations made hereinabove and after

respective respondent No. 1 surrenders

Page 15 of 16 within a period of one week as ordered above.

Present appeals are accordingly allowed to the

aforesaid extent.

………………………………….J. [M.R. SHAH]

………………………………….J. [C.T. RAVIKUMAR] NEW DELHI;

MAY 12, 2023

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