Assistant Director v. Umesh Chandra Rai and Others), under Sections
Case Details
Court No. - 83 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49447 of 2022
Legal Reasoning
6. Learned Senior Counsel for the applicant has vehemently argued at Bar that the applicant is a lady and is entitled for bail on this ground only. Learned Senior Counsel has also invoked the judgment of the Apex Court passed in Nikesh Tarachand Shah vs. Union of India & Ors.; (2018) 11 SCC 1 whereby the rigors of Section 45 of PMLA was found ultra vires. Learned Senior Counsel has stated that applicant is languishing in jail since 12.9.2022. The applicant has been enlarged on bail in the predicate offence by this Court vide order dated 8.2.2016. Learned Senior Counsel has further stated that Court has to satisfy itself to the extent of seeing whether prima facie case is made out against the applicant or not and not beyond that. Learned Senior Counsel has further stated that rigors of Section 45 of PMLA was violative of Article 20(2) of the Constitution of India. The present case is a complaint case and the maximum punishment prescribed is seven years only. There is no likelihood of applicant tampering with any witnesses whatsoever as all the witnesses are public servants. 7. Per contra, learned counsel appearing for Directorate of Enforcement has vehemently opposed the bail application on the ground that in the light of judgment of the Apex Court passed in Vijay Madanlal Choudhary & Ors. vs. Union of India & Ors.; 2022 SCC OnLine SC 929, the said judgment passed in Nikesh Tarachand Shah (supra) has been struck off as such the rigors of Section 45 of PMLA applies to the present case. Learned counsel has further stated that averments made on oath in this Court in para 13 are per se wrong as it has been stated that applicant was in jail on 21.5.2019 when the non- bailable warrant was issued against her. 8. Learned counsel for opposite party no.2 has further stated that it is admitted fact of learned Senior Counsel for the applicant that applicant was already granted bail by this Court on 8.2.2016. Learned counsel has also stated that the Court has to satisfy itself that the applicant is not guilty of offence whatsoever then only delinquent can be granted bail. The bail application of co-accused person Ghanshyam has been rejected by this Court vide order dated 9.1.2023 passed in Criminal Misc. Bail Application No. 48807 of 2022, although he has not disputed that in case of rejection there is no case of parity. Learned counsel has further stated that the main accused person Umesh Chandra Rai is still absconding and the applicant along with said absconding accused person had filed a common petition under Section 482 Cr.P.C. No.24159 of 2022 in this Court and the same was dismissed and all the accused persons were accorded time of three weeks to surrender before the court below and apply for bail in light of judgment of the Apex Court in Satender Kumar Antil vs. Central Bureau of Investigation, reported in 2021 (10) SCC 773, but the said accused persons had not surrendered before the court, thereby the trial has been stalled at the behest of accused persons and not because of prosecution. 9. In rebuttal, learned Senior Counsel for the applicant has vehemently opposed as how can the applicant be held responsible for the misdeed of the co-accused person as he has totally separate entity who is the Gram Panchayat Secretary and co-signatory to all the cheques. 10. After hearing learned counsel for the parties, going through the evidence on record, judgment of the Apex Court passed in Vijay Madanlal Choudhary & Ors. (supra) and also taking into consideration the Section 45 of PMLA, I do not find it a fit case for grant of bail to the applicant. 11. The bail application is found devoid of merits and is, accordingly, rejected. 12. However, looking to the period of detention of the applicant, it is directed that the aforesaid case pending before the trial court be decided expeditiously, preferably within a period of one year from the date of production of certified copy of this order or as early as possible in view of the principle as has been laid down in the recent judgments of the Apex Court in the cases of Vinod Kumar vs. State of Punjab; 2015 (3) SCC 220 and Hussain and Another vs. Union of India; (2017) 5 SCC 702, if there is no legal impediment. 13. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 31.1.2023 Vikas Digitally signed by :- VIKAS VERMA High Court of Judicature at Allahabad
Arguments
Applicant :- Smt. Khairunnisha Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Kumar Yadav Counsel for Opposite Party :- G.A.,Jitendra Prasad Mishra Hon'ble Krishan Pahal,J. 1. List has been revised. 2. Heard Sri Sageer Ahmad, learned Senior Advocate assisted by Sri Mohd. Ragib, learned counsel for applicant and Sri Jitendra Prasad Mishra, learned counsel appearing on behalf of Directorate of Enforcement. 3. The present bail application has been filed by the applicant in Complaint Case No. 5 of 2018 (Assistant Director vs. Umesh Chandra Rai and Others), under Sections 3/4 of Prevention of Money Laundering Act, 2002, Police Station ED, District Allahabad with the prayer to enlarge her on bail. 4. Initially, an FIR at RC No.006/2014A0019, under Sections 120-B read with 409, 419, 420, 467, 468, 471 and 201 IPC for alleged offences of criminal conspiracy, criminal breach of trust, cheating and forgery against one Smt. Salhanta Devi, the then Gram Pradhan of Village Shahpur, Police Station Khadd, District Kushinagar, U.P., Santosh Ram S/o Smt. Salhanta Devi, Ramman Prasad, husband of Smt. Salhanta Devi, Ghanshym, the then Gram Pradhan of Village Narayanpur, Police Station Khadda, Vikas Gupta, the then Gram Pradhan of Village Bhainsaha, Police Station Khadda, Smt. Khairunnisha (accused- applicant), the then Gram Pradhan of Village Pakri Brijlal, Rajesh Agarwal, Vijay Agarwal and others for financial irregularities and misappropriation of funds allotted for works related to Mahatma Gandhi Rural Employment Guarantee Scheme. 5. During the course of investigation, it is transpired that the applicant had caused loss to the State Exchequer to a tune of Rs.9.23 lakhs whereby she had committed a financial fraud being a public servant as she was the Village Pradhan of Village Pakri Brijlal. The applicant is stated to have issued bearer cheques to the alleged persons to whom she was only authorized to issue account payee cheques.