The Supreme Court had held that, there is no obligation to grant bail to the accused solely for being a women, as per the provisions of Section 45 of the Prevention of Money Laundering Activities Act, while rejecting the bail appeal and imposing a cost of Rs. 1 Lakh for misrepresentation of facts.
The order passed by the High Court of Chhattisgarh at Bilaspur is assailed by way of present Appeal, whereby the HighCourt has dismissed the bail application filed by the appellant under Section 439 of Cr.P.C.
The appellant was arrested on 02.12.2022 for the offenses punishable under Sections 186, 204, 353, 384, 120-B of Indian Penal Code read with Sections 3 and 4 of Prevention of Money Laundering Act (PMLA), 2002.
A search and seizure action under Section 132 of the Income Tax Act was carried out against an individual named Suryakant Tiwari, who was at the time of search and seizure found at Room No. 664, Hotel Sheraton Grand, Whitefield, Bengaluru.
The Deputy Director of Income Tax Investigation lodged an FIR against Suryakant Tiwari for the offenses under Sections 186, 204, 120-B and 353 of the Indian Penal Code, 1860. Later Section 384 of IPC was added on 03.09.2022.
The Directorate of Enforcement (ED) registered an ECIR bearing No. RPZO/09/2022 on the basis of the said FIR registered against the said accused – Suryakant Tiwari.
The appellant- Saumya Chaurasia, who happened to be the Deputy Secretary, in the office of the Chief Minister, Chhattisgarh, came to be arrested under the said ECIR. She was remanded to ED custody till 06.12.2022, which came to be extended till 10.12.2022 by the Special Court.
On appeal, The High Court of Chhattisgarh at Bilaspur rejected the bail plea of the appellant.
The appellant being aggrieved by the impugned order passed by the High Court of Chhattisgarh, has preferred this appeal under Article 136 of the Constitution of India.
The Two-Judge Bench of Justice Aniruddha Bose and Justice Bela M Trivedi observed that, “Curiously, the appellant at various places in the synopsis of the list of dates and events and in the memorandum of SLP has raised a grievance that the High Court in the impugned order had failed to appreciate that there was no scheduled offence which was made out 5 against the appellant, as the scheduled offences under Section 384 and 120-B of IPC were already dropped from the Chargesheet dated 08.06.2023 filed by the Investigating Officer against the accusedSuryakant Tiwari, and the Additional Chief Judicial Magistrate, Bengaluru, also had taken cognizance of the offences under Sections 204 and 353, IPC only vide order dated 16.06.2023. 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.”
It was further observed that, “In the instant Appeal, as demonstrated hereinabove, though the documents, particularly the Chargesheet dated 08.06.2023 and the Cognizance order dated 16.06.2023 were neither part of pleadings nor were produced during the course of arguments before the High Court, the Certificate at the end of the SLP appears to have been given by the Advocate-on-Record appearing for the Appellant without verifying the facts which were otherwise very apparent from 9 the record.”
Further, it was inferred that, “Having regard to the above state of affairs, the Court has a reason
to believe that there was a bold attempt made by and on behalf of the appellant to misrepresent the facts for challenging the impugned order.”
It was thus held that, “The Certificate to be issued by the Advocate-on-Record and the Affidavit to be filed by or on behalf of the petitioner/appellant at the end of the SLP as per the provisions contained in the Supreme Court Rules, do carry sanctity in the eyes of law. “
“It cannot be gainsaid that every party approaching the court seeking justice is expected to make full and correct disclosure of material facts and that every advocate being an officer of the court, though appearing for a particular party, is expected to assist the court fairly in carrying out its function to administer the justice. 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”, the Bench remarked.
However, since the learned counsels for the parties had made their submissions at length, the Court deemed it proper to deal with the appeal independently and on merits also.
The appellant counsel Siddharth Aggarwal contended that, pressing into service the proviso to Section 45, the submission was made that the appellant being a lady, she should be released on bail more particularly when she is in custody for more than one year and when the continued custody is not required.
Further, it was put forward that, “There was no substantive evidence except the bare allegations made in the prosecution complaint lodged against her, and therefore the questions rebutting the presumption 1 2022 SCC Online SC 929 13 contained in Section 45 did not arise.”
It was thus argued that there was no substantive evidence except the bare allegations made in the prosecution complaint lodged against her, and therefore the questions rebutting the presumption contained in Section 45 did not arise.
On the contrary, ASG S V Raju, for the respondent-ED submitted that, “Investigation has revealed that the appellant was one of the key persons in the creation of extortion racket run by Suryakant Tiwari and that approximately Rs.540 crores were extorted by Mr. Suryakant Tiwari. Further, Mr. Manish Upadhyay who was a relative of 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.”
It was thus contended that, “The use of the expression “may be” in the proviso to Section 45 of PMLA indicates that the benefit of the proviso cannot be extended mandatorily or automatically, and the discretion has to be exercised by the Courts depending upon the facts of each case.”
The Two-Judge Supreme Court Bench observed that, “The use of the expression “may be” in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court considering the facts and circumstances of each case, and could not be construed as a mandatory or obligatory on the part of the Court to release them. Similar benevolent provision for granting bail to the category of persons below the age of sixteen years, women, sick or infirm has been made in Section 437 Cr.P.C. and many other special enactments also, however by no stretch of imagination could such provision be construed as obligatory or mandatory in nature, otherwise all serious offences under such special Acts would be committed 21 involving women and persons of tender age below 16 years.”
It was also remarked that, “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. The extent of involvement of the persons falling in such a category in the alleged offenses, the nature of evidence collected by the investigating agency etc., would be material considerations.”
The bench thus observed and held that, 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 and held that In that view of the matter the Court does not find any merit in the instant appeal.
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