The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No. 2940 of 2022 Application under Section 482 of Criminal Procedure Code, 1973. AFR Chintan Joshi ...… Petitioner --------------- -Versus- Niranjan Behera ...…. Opp.Party Advocate(s) appeared in this case:- _________________________________________________________ For Petitioners : Mr. D. Panda, S. Panda, A. Mehta & D.K. Panda, Advocates. For Opp. Parties : Mr. Gopal Agarwal, Advocate [Enforcement Directorate] _________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 11th April, 2023 SASHIKANTA MISHRA, J. The petitioner is the accused in Crl. Misc. Case (PMLA) No. 01 of 2020 pending in the Court of learned Sessions Judge, Khurdha at Bhubaneswar. 2.
Legal Reasoning
It appears that originally an FIR was lodged by the CID, CB, Cuttack on 30.05.2017 leading to registration Page 1 of 13 of Case No. 13 of 2017 basing on a search conducted in the residential premises of the petitioner on the allegation that he was engaged in procurement of large number of Monitor Lizard hemi-penises and trading of the same online. Upon completion of investigation, charge sheet was submitted on 28.02.2018 in the Court of learned S.D.J.M., Bhubaneswar for the offences under Sections 177/182/420 of IPC read with Section 51 of the Wildlife Protection Act, 1972. The Enforcement Directorate, Bhubaneswar found that the FIR and charge sheet submitted by the CID, CB made out a prima face case of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 (in short “PMLA Act”) punishable under Section 4 of the Act. Accordingly, ECIR bearing No. ECIR/BBSZO/03/2018 dated 14.06.2018 was registered against the petitioner and investigation was taken up. In course of investigation, the residential premises of the petitioner were searched again and certain incriminating materials were allegedly recovered. It was further found that the said articles had been procured by the petitioner from the proceeds of the Page 2 of 13 crime of illegal possession and sale of Monitor Lizard hemi- penises and the same had been layered as movable properties in the form of bank balances in his name and in the name of his proprietorship concern. A provisional attachment order was made on 29.09.2019 and an original complaint has also been filed before the learned adjudicating authority, PMLA, New Delhi for confirmation of attachment of properties. On such facts, the aforementioned complaint was filed in the Court of learned Sessions Judge-cum-Special Court under the PMLA Act, Khordha, Bhubaneswar. 3. Pursuant to summons issued by the Court, the petitioner entered appearance through his counsel and filed a petition under Section 205 of Cr.P.C. seeking exemption from personal appearance and representation through his counsel. Such petition was filed, inter alia, on the ground that he is the only son of his old and ailing parents, who are undergoing treatment for various ailments and that he would not be prejudiced if the trial is conducted in his absence through his counsel. However, by Page 3 of 13 order dated 16.08.2022, the Court below rejected the petition taking note of the fact that money laundering is an economic offence and Section 45 of the PMLA Act, 2002 is restrictive in nature. The said order is impugned in the present application filed under Section 482 of Cr.P.C. 4.
Legal Reasoning
Heard Mr. D. Panda, learned counsel for the petitioner and Mr. Gopal Agarwal, learned counsel appearing for the Enforcement Directorate, Bhubaneswar. 5. Mr. Panda submits that the petitioner is the only son of his old and ailing parents, who are suffering from several ailments and require constant medical attention. Further, the petitioner is ready and willing to appear before the Court physically whenever it is felt necessary for the case. He is also ready to undertake that he shall not dispute his identity at any point of time. It is also argued by Mr. Panda that Section 45 of PMLA Act, could not have been invoked by the Court below as a ground to reject the petition under Section 205 of Cr.P.C. because the total proceeds of the crime according to the prosecution is only Rs.3,19,100/-. Referring to the first Page 4 of 13 proviso to Section 45 of the PMLA Act, Mr. Panda argues that the alleged proceeds of the crime being much less than Rs.1 Crore, the rigors of the provision would not apply. Even otherwise, the amount of proceeds being so less, the finding of the Court below that it being an economic offence would have an impact on the national economy and security is quite farfetched. Mr. Panda sums up his argument by contending that the prosecution never arrested him nor sought to take him to custody during investigation. He has been released on bail in the connected case and has never misused the liberty so granted. Mr. Panda has relied upon some decisions, which would be discussed later. 6. Mr. Gopal Agarwal, on the other hand has vehemently objected to the contentions advanced by Mr. Panda by submitting that the amount of money involved in an offence as serious as money laundering is not material. It does not become a lesser offence only because the amount of money involved is less. Mr. Agarwal further argues that it is open to the petitioner to apply for bail by Page 5 of 13 physically appearing before the Court but cannot invoke the provision under Section 205 of Cr.P.C. as a substitute for bail. It is also argued that the exemption from personal attendance is not a vested right conferred on the accused but is a matter within the exclusive discretion of the concerned Court. Moreover, such power is to be exercised not routinely but in rare cases only. The petitioner being a resident of Bhubaneswar, no hardship would be caused to him by physically appearing in the Court on the date of posting of the case. The petitioner’s conduct in seeking repeated adjournments does not entitle him to any relief. Mr. Agarwal sums up his arguments by submitting that the nature of accusation, the severity of punishment likely to be imposed and conduct of accused do not entitle him to the benefit under Section 205 of Cr.P.C. Mr. Agarwal has also relied upon some decisions, which would be referred to later. 7. Before proceeding to determine whether it is a fit case to grant exemption to the petitioner from personal attendance in the Court under Section 205 of Cr.P.C., it Page 6 of 13 would be proper to first examine the provision under Section 45 of the PMLA Act, which the Court below has cited as a ground to reject the petition filed by the petitioner and Mr. Agarwal has also relied upon before this Court. Section 45 of PMLA Act, reads as follows: “45. Offences to be cognizable and non-bailable.— (1) 1 [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence 2 [under this Act] shall be released on bail or on his own bond unless—] (i) the Public Prosecutor has been given a opportunity to oppose the application for such release; and (ii) where 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: the Public Prosecutor opposes Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, 3 [or is accused either on his own or along 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. [(1A) 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.] Page 7 of 13 (2) The limitation on granting of bail specified in 5 *** sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 8. From the copy of the complaint filed by the Asst. Director (PMLA), Bhubaneswar the role of the accused is stated as follows: “He was involved in illegal possession and sale of Monitor Lizard hemi-penises (Hatha Jodi) and horns of some wild animals (Shiyar Singi) in contravention of Section 39 of the Wild Life (Protection) Act, 1972 which is punishable under Section 51 of the Act and being Schedule Offence under the PMLA, 2002, which are nothing but “proceeds of crime” which amount around to Rs.3,19,100/-. crime derived/obtained from such criminal activity is subsequently laundered by investing in movable properties (bank balances) and hence committed an offence under Section 3 of the PMLA which is punishable under Section 4 of the PMLA.” proceeds The of Thus, essentially, the allegation against the petitioner is of obtaining Rs.3,19,100/- as proceeds of the crime and if subsequently laundering the same by investing movable properties (bank balance). From a reading of the provision under Section 45, it is evident that the same is not intended to place an absolute bar for granting bail to accused under the PMLA Act. Even otherwise, an exception to the main provision is carved out Page 8 of 13 in the form of a proviso. Thus, having regard to the fact that the proceeds of the crime allegedly laundered by the petitioner being much less than Rs. 1 crore, it is evident that the rigors of Section 45 would not apply. This Court would of course hasten to add that the proviso as above does not however, water down the seriousness of the offence in any manner whatsoever. 9. Mr. D. Panda has relied upon several decisions, such as Sanjay Kumar Agarwal vs. Directorate of Enforcement, reported in (2022) SCC OnLine Jhar 1248 and the decision of the Apex Court in the case of Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. reported in (2001) 7 SCC 401. 10. In the case of Sanjay Kumar Agarwal (supra), a Single Judge of the Patna High Court while considering a similar matter examined the position of law relating to Section 205 of Cr.P.C., the case of Bhaskar Industries Ltd. (supra) and Section 45 of PMLA Act. The Hon’ble Single Judge allowed the petition under Section 205 of Cr.P.C. with certain conditions. Page 9 of 13 In the case of Bhaskar Industries Ltd. (supra) the Apex Court summarized its findings as follows: “19. The position, therefore, boils down to this: it is within the powers of a Magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the Magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations on him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the Magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a Magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the Magistrate can consider all aspects and pass appropriate orders thereon before proceeding further.” (Emphasis supplied) Placing reliance on the decisions cited above, Mr. D. Panda would argue that Section 205 Cr.P.C. confers discretion on the Court to grant personal exemption if situation so warrants. In the instant case, summons was issued to the petitioner and not warrant and therefore, he did not submit himself to custody of the Court. Moreover, Page 10 of 13 dispensing with personal appearance will not cause prejudice to anyone. 11. On the other hand, Mr. Gopal Agarwal has relied upon the decision of the apex Court in the case of Lily Begum v. Joy Chandra Nagbanshi, reported in (1994) 2 SCC 39; TGN Kumar v. State of Kerala, reported in (2011) 2 SCC 772; S.V. Muzumdar v. Gujarat State Fertilizer Co. Ltd., reported in (2005) 4 SCC 173; Vijay Madanlal Choudhary v. Union of India, reported in 2022 SCC OnLine SC 929; and Rohit Tandon v. Directorate of Enforcement, reported in (2018) 11 SCC 46. 12. On the basis of the decisions cited above, Mr. Agarwal, firstly submits that economic offences or white collar crimes cannot be equated with other cases because of their wide ramifications such cases have on the economic security of the country. He further argues that the petitioner has not made out any case for exemption from personal appearance as he is a resident of Bhubaneswar and can easily attend the Court without adversely affecting his business. By insisting for personal Page 11 of 13 appearance, the learned Special Court has given the petitioner an opportunity to seek bail by offering sureties and executing bonds by subjecting himself to the jurisdiction of the Court through a bond to the effect that he shall cooperate with trial by abiding by the conditions imposed by the Court. 13. Having heard the parties at length, this Court would like to examine whether a case for exemption from personal appearance is made out. 14. In Bhaskar industries Ltd. (supra) it was held that the discretion conferred by Section 205 of Cr.P.C. on the Court is to be used only in rare cases where personal appearance of the accused would cause great hardship on him. In particular, if the accused is residing at a far-off place or has any physical ailment or is otherwise indisposed, the prayer for exemption from personal attendance can be favourbaly considered. But such discretion is not to be exercised routinely or on the mere asking. Page 12 of 13 15. In the present case, the petitioner claims that he is the only son of his aged parents, who are ill and require constant attention. No document is filed in this regard. This Court finds that the petitioner is a relatively young man, aged about 38 years. He is a resident of Bhubaneswar and also has his business in Bhubaneswar. Therefore, attending the Court can by no stretch of imagination be treated as causing undue hardship on him. As already stated, the power under Section 205 is not meant to be used routinely but only when circumstances so demand. In view of what has been stated hereinbefore, this Court finds the circumstances not justifying exercise of such power by the Court. To such extent therefore, this Court finds no infirmity much less any illegality in the impugned order so as to interfere. 16.
Decision
In the result, the CRLMC is found to be devoid of any merit and is therefore, dismissed. ……..…………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 11th April, 2023/ A.K. Rana, P.A. Page 13 of 13