The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK ABLAPL No. 3735 of 2023 Nalini Prusty …. Petitioner Mr. H. K. Mund, Advocate -versus- Enforcement Directorate, BBSR …. Opp. Party Mr. Gopal Agarwal, Panel Advocate for ED CORAM: JUSTICE CHITTARANJAN DASH Order No. ORDER 13.12.2023 02. 1. By means of this application, the Petitioner seeks grant of bail U/s.438 Cr.P.C. in apprehension of judicial custody upon her appearance before the learned Special Judge (PMLA), Bhubaneswar for her alleged involvement in the offences U/s.13(2), R/w.13(1)(b) of the Prevention of Corruption (Amendment) Act, 1988 in connection with Complaint Case (PMLA) No.11 of 2022
Legal Reasoning
arising out of ECIR No. ECIR/BBZO/01/2019 dated 22.01.2019 at Bhubaneswar Sub-Zonal Office of Enforcement Directorate pending before the Court of the Cum-Special Judge (PMLA)., Bhubaneswar. 2. Perusal of the case record reveals that the FIR was registered on the basis of a report submitted by Tanuja Mohanty, then working as DSP., Vigilance Cell Unit, Bhubaneswar to the S.P., Vigilance Cell, Cuttack alleging therein that on receipt of the reliable information Page 1 of 7 // 2 // about the acquisition and possession of assets disproportionate to her known sources of income by the Petitioner (who was then working as the Financial Advisor-Cum-Chief Accounts Officer, Odisha Primary Education Program Authority, Bhubaneswar) and her husband, who was then working as the Tahasildar, Chhatrapur, Odisha and other family members, an enquiry was taken up by the Vigilance. 3. Enquiry revealed that the Petitioner is the daughter of a retired M.E. School teacher and her husband is the son of petty businessman. Both of them got married in the year 1998. The Petitioner joined State Government Service in Odisha Financial Service in the year 1999 and worked in various capacities. The husband of the Petitioner joined service as a UD Clerk in Central Excise and Customs in the year 1993 and subsequently joined Odisha Administration Service in the year 2005. During the said enquiry in order to ascertain the assets possessed by the Petitioner and her husband, simultaneously searches were conducted on 29.08.2018 of their residential building/flats, Office chambers as well as houses of their relatives. A scrutiny of the documents recovered during such search allegedly revealed that in furtherance of their common intention they had acquired six numbers of plots and Flats and had constructed a triple storied building at Chandrasekharpur, Bhubaneswar in the name of the mother of the Petitioner who had no independent source of income. The total assets acquired by the Petitioner and her husband in the shape of plots, buildings, deposits, household articles, gold and diamond jewelry were valued at Rs.6,79,86,000/- approximately without mentioning the cost item wise. It is further alleged in the said report Page 2 of 7 // 3 // that the approximate income of both of them from salary, loan, sale of properties and other income amounted to Rs.2,50,00,000/- and they have incurred an expenditure of Rs,75,00,000/- approximately under heads of consumer expenditure, educational expenses, payment of insurance premiums, stamp duty, registration fee, loan repayment etc. It was thus alleged in the report that the Petitioner and her husband possessed disproportionate assets worth of Rs. 5,04,86,000/- thereby intentionally enriched themselves illicitly in furtherance of their common intention and in the said act they were assisted by the mother of the Petitioner namely Devaki Prusty (Since dead). 4. Pursuant to the Report and after the preliminary investigation while investigation kept open, the enforcement directorate filed complaint before the learned Sessions Judge-cum-special Judge, PMLA, Bhubaneswar alleging commission of offence U/s. 3 of PMLA whereupon the Complaint Case (PMLA) No. 11 of 2022 was registered and the learned court issued summon to the Petitioner to appear in person or through pleader as the case may be
Legal Reasoning
on 20.04.2023. As submitted by the learned counsel, the Petitioner appeared through pleader and sought adjournment for appearance of the Petitioner in person. Apprehending that on her appearance, the Petitioner may be taken to judicial custody she moves herein for anticipatory bail. 5. Heard Mr. Mund, the learned counsel for the Petitioner and Mr. Agarwal learned counsel representing the Enforcement Directorate, at length. Page 3 of 7 // 4 // 6. Admittedly, in the case in hand the learned court has issued summon directing the Petitioner to appear with an option either to appear in person or through pleader. No order of NBW has been issued even though the offence alleged is non-bailable in nature. 7. In W.P. (CRIMINAL) No. 12 of 2023 in the matter of Rana Ayyub Vs. Directorate of Enforcement through Asst. Director, the Apex Court held as follows: to to apply is specifically declared 28. It is only because of the Special Court constituted under Section 43(1) being conferred primacy that Section 44(1) begins with the words “notwithstanding anything contained in the Code of Criminal Procedure”. Though the PMLA contains a non-obstante clause in relation to the Cr.P.C, both in Section 44(1) and in Section 45(1), there are two other provisions where the Code of Criminal Procedure the proceedings before a Special Court. Section 46(1) specifically makes the provisions of the Cr.P.C applicable to proceedings before a Special Court. Similarly, Section 65 of the PMLA makes the provisions of Cr.P.C apply to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under the Act. 29. Therefore, it is clear that the provisions of the Cr.P.C. are applicable to all proceedings under the Act including proceedings before the Special Court, except to the extent they are specifically excluded. Hence, Section 71 of the PMLA providing an overriding effect has to be construed in tune with Section 46(1) and Section 65. 8. In essence, being the court of first instance, the Special Court is empowered to take cognizance under the PML Act, in exercise of the provisions enumerated under the Code of Criminal Procedure applicable to be exercised by a cognizance taking Magistrate barring those pointed out by the Apex Court as above. Page 4 of 7 // 5 // 9. Adverting to the provision enumerated U/s 209 Cr.P.C it is apt to mention that the Special Court upon appearance of a party pursuant to the institution of a case by the Directorate subject to the restrictions enumerated U/s 45A of the PMLA relating to bail, inter alia, may remand the accused to custody during, and until the conclusion of the trial. 10. According to learned counsel for the Petitioner during the course of preliminary investigation the Petitioner has not been arrested. However, pursuant to the summon issued by the court on the Petitioner, she appeared through her counsel and sought for an adjournment for her personal appearance. Mr. Agarwal, the learned counsel representing the Directorate drew the attention of this Court to the order passed by the coordinate bench of this Court in ABLAPL No.14928 of 2021 wherein this court has held the application U/s. 438 Cr.P.C in the present scenario is not maintainable. Going through the analogy in the said order, in agreement with the said view, this Court also reiterates that the Petitioner once amenable to the custody of the court being summoned cannot seek invocation of power U/s. 438 Cr.P.C. By this, the authority of the court gets throttled who has a discretion to deal with the persons appearing before it pursuant to the issuance of summon. As submitted, no NBW has been issued more in order to show an apparent apprehension of detention in judicial custody which is the mandate to seek the provision U/s 438 Cr.P.C mandated in Gurbaksh Singh Sibia Vrs. State of Punjab. This Court earlier in the matter of Bijay Ketan sahoo Vrs Enforcement Page 5 of 7 // 6 // Directorate (in ABLAPL No. 3541 of 2023) in connection with the husband of the Petitioner has held as follows:- “ Keeping in view the submission of the parties made herein and the material emanates there from as placed before this Court, further keeping in view the provision as to presumption as contained in Section 24 of the Act and the statutory bar placed under Section 45 of the PML Act as well as the dictum of the Apex Court in the case of Vijay Madanlal Choudhury v. Union of India in SLP (Civil) No.28394 of 2021 and batch and The Directorate of Enforcement vrs M. Gopal Reddy & Anr in SLP (Crl) No. 8260/2021) while this court is not inclined to accept the prayer for anticipatory bail, it is directed that in the event the Petitioner appears before the Special Court in seisin over the matter and move for grant of regular bail, the same shall be considered on its own merit, keeping in view the developments in law vis-à-vis the facts emerges in the case in hand in their proper perspective and further that the custodial interrogation of the Petitioner was not required during entire process of investigation so far and the Petitioner too has cooperated as acknowledged by the opposite party too and dispose of in accordance with law without being influenced or prejudice of any observation made herein.” 11. Taking a similar view, while this court is not inclined to grant relief prayed for directs that in the event the Petitioner appears before the learned Special Court in seisin over the matter and move for grant of regular bail, the same shall be considered on its own merit, keeping in view the developments in law as laid down by the Page 6 of 7 // 7 // Apex Court in the matter of Vijay Madanlal Choudhury v. Union of India (Supra) vis-à-vis the facts emerges in the case in hand in their proper perspective and further that Petitioner has cooperated with the investigation so far as acknowledged by the opposite party too and dispose of in accordance with law without being influenced of any observation made herein.
Decision
12. The ABLAPL stands disposed of accordingly. Judge (Chittaranjan Dash) Bijay Signature Not Verified Digitally Signed Signed by: BIJAY KETAN SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 15-Dec-2023 10:25:09 Page 7 of 7