Prevention of Money Laundering Act, 2002 – s.45 – Applicability of, to applications u/s.438, CrPC – Held: Once the prayer for anticipatory bail is made in connection with offence under the 2002 Act, the underlying principles and rigours of s.45 must get triggered, although the application is u/s.438, CrPC – In the present case, once the enquiry/investigation against respondent No.
1 was going on for the offence under the 2002 Act, the rigour of s.45 of the 2002 Act would be attracted – Impugned order passed by the High Court holding that the provisions of s.45 shall not be applicable w.r.t the anticipatory bail applications u/s.438, CrPC and granting anticipatory bail to respondent No.1 is unsustainable – Further, the impugned order is erroneous even on merits, set aside – Code of Criminal Procedure, 1973 – s.438.
Code of Criminal Procedure, 1973 – s.438 – Exercise of discretion under – Economic offences – Held: In case of economic offences having an impact on the society, the Court must be very slow in exercising the discretion u/s.438.
Allowing the appeal, the Court
HELD: 1.1 Respondent No. 1 is apprehending his arrest in connection with the complaint/case by the ED for the offence of money laundering under Section 3 of the Prevention of Money Laundering Act, 2002 and punishable under Section 4 of the said Act. An enquiry/investigation is going on against respondent No.
1 for the scheduled offence in connection with FIR No. 12/2019. Once the enquiry/investigation against respondent No. 1 is going on for the offence under the Act, 2002, the rigour of Section 45 of the Act, 2002 would be attracted. By the impugned judgment and order, while granting anticipatory bail the High Court has observed that the provisions of Section 45 of the Act, 2002 shall not be applicable with respect to the anticipatory bail applications/proceedings under Section 438 Cr.PC. For which the High Court has relied upon the decision of this Court in the case of Nikesh Tarachand Shah. In the case of Dr. V.C. Mohan, this Court has specifically observed and held that it is the wrong understanding that in the case of Nikesh Tarachand Shah this Court has held that the rigour of Section 45 of the Act, 2002 shall not be applicable to the application under Section 438 Cr. PC. In the case of Dr. V.C. Mohan in which the decision of this Court in the case of Nikesh Tarachand Shah was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered – although the application is under Section 438 Cr.PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr.V.C. Mohan and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah. Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable. [Paras 5 and 5.1][86-G-H; 87-A-B; 88-B-G]
1.2 Even otherwise on merits also, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offence(s) under the Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. In case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC.[Paras 6 and 6.3][88-G-H; 89-A, H; 90-A]
1.3 The rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable. [Para 7][90-B]
Nikesh Tarachand Shah Vs. Unoin of India and Anr. (2018) 11 SCC 1 : [2017] 12 SCR 358; The Asst. Director Enforcement Directorate Vs. Dr. V.C. Mohan 2022 SCC OnLine SC 452; P. Chidambaram Vs.
Directorate of Enforcement (2019) 9 SCC 24:[2019]
12 SCR 172 – relied on.
Y.S. Jagan Mohan Reddy Vs. CBI (2013) 7 SCC 439 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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