Mahabir Prasad Rungta … … v. Directorate of Enforcement, Government of India, through its Assistant Director Debiddatta Sarangi
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. M. P. No. 1177 of 2023 ----- Mahabir Prasad Rungta … …. Petitioner Versus Directorate of Enforcement, Government of India, through its Assistant Director Debiddatta Sarangi … …. Opp. Party ----- CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY ----- For the Petitioner For the ED
Legal Reasoning
rejected by this Court in A.B.A. No.1983 of 2023. Even for grant of bail, it is incumbent on the part of the petitioner to satisfy the twin conditions as provided under Section 45 of the PMLA Act. 12. It is submitted that the case of the petitioner is distinguishable from the case of Rakesh Singhania @ Rakesh Kumar Singhania. As per the case of prosecution, the petitioner is the Director of M/s Ramgarh Sponge Iron Pvt. Ltd. and the main allegation against the petitioner is that petitioner’s company had been procuring iron ore from M/s Maa Tarini Metals which was a non-existing firm on the basis of 59 transit challans. It is alleged that 2962.42 Metric tonnes were purchased from the non-existent firm. The petitioner being Director of the M/s Ramgarh Sponge Iron Pvt. Ltd. was mainly in-charge for procurement and thereby caused a total loss of Rs.60,04,985/- of iron ore which were extracted from Government mines. 13. After having considered the submissions advanced on behalf of the petitioner and the medical papers of treatment with regard to it, leaves little doubt about the history of liver ailment including liver cancer, and HBV related cronic liver and kidney disease. Further, prosecution complaint and subsequent order of cognizance make out a primafacie case against the petitioner for offence of money laundering. 14. Petitioner has not moved the Court for anticipatory bail. 15. Matter for consideration is whether the petitioner can be exempted from personal appearance u/s 205 of the Cr.P.C for appearing before the trial Court on medical ground? 16. At the outset it must be noted that the learned Court below was right in setting out the principles of exemption while dealing with petition u/s 205 of the Cr.P.C. Such exemption is not normally meant to be allowed in offences which are grievous in nature like that under PC Act and PMLA Act. It is a question of striking a balance between individual liberty and restrictions that are imposed on it by procedure established by law. Criminal Procedure Code is a substantive Code with respect to the provisions laid down by it. Mandate of the Code is personal appearance of the accused at the stage of trial, and exceptions to it had been carved out in the form of provisions like Section 205 and Section 317 of the Cr.P.C. In order to appreciate the law as laid down by the legislature, it will be desirable to reproduce these provisions which are as under. 205. Magistrate may dispense with personal attendance of accused.—(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. 317. Provision for inquiries and trial being held in the absence of accused in certain cases.—(1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately. 17. What is apparent from the above provisions is that power of exemption from personal appearance under section 205 Cr.P.C is to be exercised by the magistrate and power under Section 317 Cr.P.C can be exercised both by the Judge or magistrate. Section 205 Cr.P.C comes immediately after issuance of process u/s 204 Cr.P.C under the chapter XVI which is for commencement of proceedings before magistrates. Section 317 Cr.P.C is under chapter XXIV which is general provisions as to inquiries and trial. From this it will be apparent that the power of exemption is normally to be exercised at the commencement of proceeding, whereas section 317 Cr.P.C can be invoked at any stage of inquiry or trial. 17. Further, section 205 will apply where the summon has been issued against the accused, no such rider applies to section 317. Exemption under section 205 can be granted normally in offences triable by the court of magistrates where summons have been issued. After cognizance, u/s 204(1)(b) in a warrant–case the magistrate may issue a warrant, or, if it thinks fit, a summons. When these provisions are looked together it evident that Section 205 is intended for offences which are triable by magistrate and where summons have been issued. 18. The scheme of the Code envisages distinct provisions as per the nature and gravity of offence and lays down different procedure in offences of different nature. Thus, the procedure for trial differs as per the nature of offence, be that summary trials, summons triable, warrants triable or sessions triable. To import the provision of section 205 Cr.P.C which is intended for minor offences, in offences of serious nature will not be in consonance with its letter and spirit. It has been held in Lily Begum v. Joy Chandra Nagbanshi, (1994) 2 SCC 39 in a case u/s 376,417 and 506 Hon’ble Supreme Court held that the reasons given by the High Court to dispense with the personal attendance of the respondent (accused) by invoking the powers under Section 205 of the Code of Criminal Procedure is untenable especially in a case of this nature, wherein serious allegations are made against the respondent (accused). If such a privilege, in our opinion, is given to an accused in a case of this nature, people will lose their confidence in the administration of justice. 19. Here in the present case cognizance is taken under Section 4 of the PMLA which is punishable for a sentence of not less than three years, but it may extend to seven years of imprisonment and for the predicate offence specified under para 2 Schedule A the imprisonment may extend to 10 years. The trial is to be held by Special Courts of Sessions constituted under Section 42 of the Act. Section 45 PMLA mandates that no person shall be granted bail unless 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. The offence under this Act is not trial by magistrate for which Section 205 is basically intended for. 20. Facts of the present case is very different to Puneet Dalmia v. CBI, (2020) 12 SCC 695 where the exemption from personal appearance was granted mainly for the reason that where two co-accused in cases arising of the same FIR, the applications for exemption on the very same grounds had been allowed, one by the High Court and another by the learned trial court. Further, the appellant/petitioner had been appearing for last six years without delaying the trial. Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd., (2001) 7 SCC 401 related to a case of Section 138 NI Act and was not relating to a serious offence like that one at hand. 21. Here in the present case the petitioner instead of moving the Court below for anticipatory bail, moved the Court below for exemption u/s 205 of the Cr.P.C when the anticipatory bail petition of similarly situated co-accused has been rejected. It appears to be an ingenuous move to circumvent the rigours of the provision of bail as laid down u/s 45 of the PMLA. 22. As discussed above, the petitioner appears to have suffered liver cancer and his present medical status appears to be a case of Liver cancer as HCC Post TARE which stands for hepatocellular carcinoma transarterial radioemobilization. This Court is of the view that medical condition of the petitioner may be one of the grounds for considering the bail petition of a petitioner, anticipatory or regular, but this cannot be a ground for moving a petition u/s 205 of the Cr.P.C which is not intended for serious offence of the like at hand. To hold otherwise will set wrong precedence and may delay the framing of charge and trial as a whole. For the reasons, as discussed above, the instant petition is rejected. Sandeep /uploaded. (Gautam Kumar Choudhary, J.)
Arguments
: Mr. Pandey Neeraj Rai, Advocate Mr. Rohit Ranjan Sinha, Advocate : Mr. Amit Kr. Das, Advocate ----- Oral Order 04 / Dated : 28.06.2023 1. The instant criminal misc. petition has been filed for quashing the order dated 28.02.2023 passed by the AJC-XVIII-cum-Special Judge, PML Act, Ranchi whereby and where under, the petition filed under Section 205 of Cr.P.C. for dispensing with personal appearance in ECIR-07/2022 of the petitioner has been rejected. PROSECUTION CASE 2. Petitioner is the Director of M/s Ramgarh Sponge Iron Pvt Ltd & Ors and is alleged to have procured iron ore and transported 2962.42 MTs of on 89 transit permits from M/s Tarini Metal which was shown as a lessee, which was found during investigation that no mining licence was issued and it was a non-existing entity. Petitioner in connivance with his employees dishonestly, fraudulently and voluntarily used the above set of challans of M/s rungta Mines Ltd for transporting the ill-gotten iron ore causing a total loss of Rs 60,04,985/- Petitioner failed to satisfactorily identify the transaction and mode of payment to Maa Tarini Metals. 3. Accordingly, Prosecution Complaint has been submitted against by the ED u/s 4 of PMLA,2002 vide ECIR Case No.07/2022 which pertains predicate offences u/s 120 B r/s 420, 467 and 471 of the IPC in the charge-sheet no.2 dated 11.01.2013 filed by CBI in RC-07(S)/2010-AHD-R. 4. After submission of the prosecution complaint, cognizance has been taken and summon issued to the petitioner for appearance. 5. Petitioner filed petition for exemption from personal appearance u/ 205 Cr.P.C on health ground which has been rejected considering the nature and gravity of offence. 6. It is submitted that petitioner is suffering from Liver Cancer known in medical terms as Hepatocellular Carcinoma (HCC). He is aged 68 years and has undergone treatment at New York, USA in Weill Cornell hospital and at Delhi. He is required to go for further treatment to USA. He is also suffering Hepatitis- B Virus infection and sleep Apnea and has undergone Renal artery embolization and Inguinal hernia repair. 7. Further, he is resident of Delhi and it will cause physical hardship to appear before the Court below on each and every date. 8. Further, the prayer for exemption is covered by the decision of the Hon’ble Supreme Court delivered in Puneet Dalmia Vs. Central Bureau of Investigation, Hyderabad {(2020) 12 SCC 695}, Bhaskar Industries Ltd. Vs. Bhiwani Denim and Apparels Ltd. and Ors. {(2001) 7 SCC 401}. 9. Lastly, it is submitted that the amount involved is less than Rs. One Crore which was considered by the Coordinate Bench of this Court while granting exemption to the accused under Section 205 Cr.P.C. in Cr.M.P. No. 1827 of 2022. 10. Learned counsel for the ED has opposed the prayer for exemption. It is submitted that the relevant paper(s) regarding treatment enclosed with the instant Cr. M. P. is dated 28.03.2022 of Medanta, Gurgaon, in which there is no reference to the patient (petitioner) is suffering from Liver cancer. The medical status is stated to be HCC Post TARE and it was not a case of medical emergency. 11. It is further submitted that the offences are serious in nature in which the anticipatory bail application of similarly situated co-accused persons has been