2024 INSC 595
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2024
[Arising out of SLP(Criminal) No. 8781 of 2024]
MANISH SISODIA …APPELLANT(S)
VERSUS
DIRECTORATE OF ENFORCEMENT …RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. OF 2024
[Arising out of SLP(Criminal) No. 8772 of 2024]
J U D G M E N T
B.R. GAVAI, J.
1. Leave granted. Appeals heard on merits.
2. The present appeals challenge the judgment and order
dated 21st May 2024 passed by the learned Single Judge of
the High Court of Delhi at New Delhi in Bail Application Nos.
1557 and 1559 of 2024, thereby rejecting the said
applications filed by the present appellant for grant of bail.
The aforesaid two applications were filed seeking bail in
connection with ED Case No. HIU-II/14/2022 registered
2
against the appellant by the Directorate of Enforcement (for
short, ‘ED’) and First Information Report (FIR) No.
RC0032022A0053 of 2022 registered against the appellant
by the Central Bureau of Investigation (for short, ‘CBI’).
3. FIR No. RC0032022A0053 of 2022 came to be
registered by the CBI on 17th August 2022, and ED Case No.
HIU-II/14/2022 came to be registered by the ED on 22nd
August 2022.
4. Since both the cases arise out of similar facts, the latter
being the predicate offence and the former being a case
registered on the basis of the predicate offence, both these
appeals are heard and decided together.
FACTS IN BRIEF:
5. The present case travelled two rounds before the trial
court, the High Court and this Court. This is now the third
round before this Court wherein the appellant is seeking bail
in connection with the aforesaid two cases.
6. On the basis of a letter dated 20th July 2022 addressed
by Shri Vinai Kumar Saxena, the Lieutenant Governor of
Delhi, alleging irregularities in the framing and
3
implementation of Delhi’s Excise Policy for the year 2021-22,
the Director, Ministry of Home Affairs had directed an
enquiry into the said matter vide Office Memorandum dated
22nd July 2022. On 26th February 2023, the appellant came
to be arrested by the CBI. Subsequently, the appellant was
arrested by the ED on 9th March 2023.
7. After investigation, CBI filed charge-sheet on 25th April
2023 for the offences punishable under Sections 7, 7A, 8 and
12 of the Prevention of Corruption Act, 1988 (for short, ‘PC
Act’) read with Sections 420, 201 and 120B of the Indian
Penal Code, 1860 (for short, ‘IPC’). Upon completion of
investigation, the ED filed a complaint under Section 3 of the
Prevention of Money Laundering Act, 2002 (for short, ‘PMLA’)
on 4th May 2023.
8. The first application for regular bail of the appellant in
CBI matter came to be rejected by the High Court on 30th
May 2023. Subsequently, the first application for regular bail
of the appellant in ED matter came to be rejected by the High
Court on 3rd July 2023. This Court, vide common order
dated 30th October 2023 (hereinafter referred to as “the first
order of this Court”) rejected the regular bail applications of
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the appellant in the CBI matter and the ED matter, with
certain observations which we will refer to in the subsequent
paragraphs.
9. Subsequently, in view of the liberty granted by this
Court, the appellant filed second bail application before the
trial court on 27th January 2024. In the said proceedings,
the appellant was granted interim protection. However, by
an order dated 30th April 2024, the trial court rejected the
said bail application on the ground that there was no change
in the circumstances.
10. The appellant thereafter filed second bail application
before the High Court on 2nd May 2024. Vide impugned
judgment and order dated 21st May 2024, the learned Single
Judge of the High Court rejected the said bail application
also.
11. Being aggrieved thereby, the appellant had approached
this Court by filing Special Leave Petition (Criminal) Nos.
7795 and 7799 of 2024.
12. The matter was heard on 4th June 2024. This Court, in
the said order (hereinafter referred to as “the second order of
this Court”) recorded the submissions of the learned Solicitor
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General that the investigation would be concluded and final
complaint/charge-sheet would be filed expeditiously and at
any rate on or before 3rd July 2024 and immediately
thereafter, the trial court would be free to proceed with the
trial. This Court recorded the submissions made by the
learned Solicitor General and observed that having regard to
the fact that the period of “6-8 months” fixed by this Court by
order dated 30th October 2023 had not yet come to an end,
disposed of the said petition with liberty to revive his prayer
afresh after filing of the final complaint/charge-sheet.
13. Accordingly, after filing of the final complaint/chargesheet, the appellant has approached this Court by way of the
present appeals. This Court, vide order dated 16th July 2024
had issued notice. In response thereto, counter affidavit has
been filed on behalf of the ED as well as the CBI opposing the
present appeals.
SUBMISSIONS:
14. We have extensively heard Dr. Abhishek Manu Singhvi,
learned Senior Counsel appearing on behalf of the appellant
and Shri Suryaprakash V. Raju, learned Additional Solicitor
General (ASG) appearing on behalf of the respondents.
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15. A preliminary objection has been raised on behalf of the
learned ASG that the appellant cannot be permitted to file
second set of SLPs to challenge the order of the High Court
dated 21st May 2024 when the earlier SLPs arising out of the
same order were disposed of. He submitted that the liberty
granted by this Court vide order dated 4th June 2024 has to
be construed as a liberty to apply to the trial court afresh. It
is submitted that, only after the appellant approaches the
trial court and in the event he does not succeed before the
trial court, thereafter he approaches the High Court and in
the event he also does not succeed before the High Court,
then only he would be entitled to approach this Court. He
therefore submitted that the present appeals deserve to be
rejected thereby relegating the appellant to approach the trial
court afresh. To buttress his submission, Shri Raju relied on
the judgment of this Court in the case of Kunhayammed
and Others v. State of Kerala and Others1.
16. The said preliminary objection has been opposed by Dr.
Singhvi, learned Senior Counsel appearing on behalf of the
appellant contending that this Court had specifically, vide its
1
(2000) 6 SCC 359 : 2000 INSC 339
7
first order dated 30th October 2023, granted liberty to the
appellant to move a fresh application for bail in case the trial
does not conclude within next 6-8 months and also in case
the trial is protracted and proceeds at a snail’s pace in next
three months. He submitted that, admittedly, the trial has
not been concluded within a period of 6-8 months from the
date of the first order of this Court. He further submitted
that the record would show that the trial was protracted and
proceeded at a snail’s pace in the period of three months
after the first order of this Court was passed. He submitted
that the second order of this Court clearly reserves the right
of the appellant to revive the request afresh after filing of the
final complaint/charge-sheet as assured by the learned
Solicitor General. Dr. Singhvi therefore prays for rejection of
the preliminary objection.
17. On merits, Dr. Singhvi submitted that this Court, vide
its first order dated 30th October 2023, has given various
findings in favour of the appellant. It is submitted that, a
perusal of the same would clearly reveal that at number of
places, this Court has given findings which would show that
the respondents have not been in a position to make out a
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prima facie case. Dr. Singhvi further submitted that a
perusal of the record would reveal that even the investigation
in the case is not complete. He therefore submitted that
unless the investigation is complete, the trial cannot proceed.
He submitted that three more supplementary complaints
have been filed on 10th May 2024, 17th May 2024 and 20th
June 2024 in the ED matter and as on 27th July 2024, there
were 40 persons who have been arrayed as accused in the
proceedings with more than 8 complaints. He further
submitted that, in the ED matter, the ED has cited 224
witnesses and produced 32,000 pages of documents. He
further submitted that, in the CBI matter, the CBI has cited
269 witnesses and produced around 37,000 pages of
documents. It is therefore submitted that in all there are 493
witnesses, excluding the ones in the 4th Supplementary
Charge-sheet filed by the CBI, who will have to be examined
and that in total the documents are running into around
69,000 pages.
18. Dr. Singhvi submitted that the ED has deliberately
concealed the documents it acquired during investigation by
putting documents exculpating the accused persons in the
9
category of “un-relied upon documents”. It is submitted that,
as such, it was necessary for the appellant to inspect such
“un-relied upon documents”. He further submitted that there
was an inordinate delay on the part of the ED and the CBI in
producing the list of “un-relied upon documents”.
19. Dr. Singhvi submitted that, taking into consideration
the voluminous number of witnesses and documents, there
is no possibility of the trial seeing the light of the day and
therefore the appeals filed by the appellant deserve to be
allowed.
20. Shri Raju vehemently opposed the present appeals. He
submitted that this Court, in its first order, after
enumerating various factors on merits of the matter in
paragraph 25 has held that the Court was not inclined to
accept the prayer for grant of bail. It is therefore submitted
that the appeals of the present appellant on merits were
specifically rejected.
21. Shri Raju further submitted that, though the Court
granted liberty to file a fresh application in the circumstances
enumerated in paragraph 29, it was held that the same
would be considered by the trial court on merits without
10
being influenced by the dismissal of the earlier bail
applications including the said first order. It is therefore
submitted that the trial court as well as the High Court were
required to take into consideration the merits of the matter.
However, the present appellant opposed the consideration of
the application on merits and insisted on consideration of the
application only on the ground of delay in trial. It is
therefore submitted that both the courts have rightly
considered the merits of the matter and after considering the
merits, found that the appellant was not entitled to grant of
bail. He submitted that no interference would be warranted.
22. Shri Raju submitted that the trial court and the High
Court have specifically come to a finding that the appellant
has delayed the pre-charge proceedings by taking recourse to
the provisions of Section 207 of Criminal Procedure Code,
1973 (for short, ‘Cr.P.C.’). He submitted that more than
hundred applications have been filed out of which many are
under Section 207 Cr.P.C. These applications have been
filed only for the purpose of delaying the trial. It is submitted
that though in view of the law laid down by this Court in the
11
case of P. Ponnusamy v. State of Tamil Nadu2
, such
applications could have been filed only after framing of the
charges, the same have been intentionally filed at a precharge stage of the trial, so as to delay the framing of the
charges. He submitted that though the appellant is entitled
to file an application for discharge, the same has not been
filed only in order to protract the trial. He submitted that the
totality of the circumstances would reveal that it is the
appellant who has been protracting the trial. It is submitted
that as the appellant himself is responsible for protracting
the trial, he cannot be permitted to take the benefit of the
same.
23. The learned ASG submitted that unless the triple
conditions as stipulated under Section 45 of the PMLA are
satisfied, no person accused of an offence shall be released
on bail. It is submitted that, in the present case, this Court
itself by the first order has found that the appellant was not
entitled for bail on merits and as such, the second condition
stipulated under Section 45 of the PMLA that there are
2 2022 SCC OnLine SC 1543 : 2022 INSC 1175
12
reasonable grounds for believing that he is not guilty of such
offence, would not be satisfied in the present case.
24. The learned ASG further submitted that the appellant is
a very influential person having occupied the office of Deputy
Chief Minister of Delhi when the crime was committed. He
submitted that if the appellant is released on bail, there is
every possibility of him influencing the witnesses or
tampering with the evidence.
25. Dr. Singhvi, in rejoinder, has submitted that the
contention that the trial is being delayed due to the
applications being filed by the appellant under Section 207
Cr.P.C. is totally incorrect. He submitted that the said
applications were required to be filed since the prosecution
had not placed on record the documents exculpating the
accused persons by placing the same in the category of “unrelied upon documents”. He submitted that in order to avail
the right of a fair trial and in adherence to the principles of
natural justice as encapsulated in Section 207 Cr.P.C., the
appellant was forced to file such applications. However, each
of these applications were vehemently opposed by the
prosecution. It is submitted that the said material ought to
13
have been placed on record by the prosecution themselves,
however, for the reasons best known to the prosecution, they
have not done so. He submitted that the appellant has filed
only 14 applications in ED case and 13 applications in CBI
case and that all these applications have been allowed by the
learned trial judge. He lastly submitted that even as per the
prosecution, if the entire “un-relied upon documents” are to
be supplied in digital form, it will take a long time. To
support his submission, Dr. Singhvi places reliance on the
compliance report dated 7th May 2024 filed by the Assistant
Director of ED which would fortify this position.
CONSIDERATION OF PRELIMINARY OBJECTION:
26. We will first deal with the preliminary objection of the
learned ASG with regard to the filing of the second set of
appeals before this Court challenging the order of the High
Court dated 21st May 2024 i.e., on the point of
maintainability.
27. Undisputedly, the appellant had earlier challenged the
same order dated 21st May 2024 vide SLP (Criminal) Nos.
7795 and 7799 of 2024. On doing so, a Division Bench of
this Court passed the order dated 4th June 2024. It will be
14
apposite to refer to the observations made by this Court in
the said order, which read thus:
“Though, elaborate arguments have been made, we
do not propose to go into the said arguments or
dwell upon it and then record our reasons for the
simple reason that Co-ordinate Bench while
dismissing the appeals vide order dated 30.10.2023,
as noticed hereinabove has granted liberty to the
appellant, i.e., the petitioner herein to move a fresh
application for bail by placing reliance on the
assurance given on behalf of the prosecution that
they would conclude the trial by taking appropriate
steps within next 6-8 months and as such the
liberty was extended to the petitioner herein to move
a fresh application in case of change in
circumstances, or in case the trial is protracted and
proceeds at a snail’s pace in next three months. It
was also observed that if such an application is filed
in the aforesaid circumstances, the same would be
considered by the trial court on merits without
being influenced by the dismissal of the earlier bail
application including the judgment of this Court.
Shri Tushar Mehta, learned Solicitor General on
instructions would submit that the investigation
would be concluded and final complaint/charge
sheet would be filed expeditiously and at any rate
on or before 03.07.2024 and immediately thereafter,
the trial court will be free to proceed with trial. In
the light of the said submissions made and having
regard to the fact that the period of “6-8 months”
fixed by this Court by Order dated 30.10.2023
having not come to an end, it would suffice to
dispose of these petitions with liberty to the
petitioner to revive his prayer afresh after filing of
the final complaint/Charge-sheet as assured by
learned Solicitor General. Needless to state that in
the event of such an application being filed, the
same would be considered on its own merits as
15
already observed by this Court vide paragraph 29
(supra). Contentions of both parties kept open.
Accordingly, these petitions stand disposed of. All
pending applications consigned to record.”
28. Before considering the submissions of the learned ASG
with regard to maintainability of the present appeals on
account of the second order of this Court, it will be apposite
to refer to certain observations made by this Court in its first
order, which read thus:
“26. However, we are also concerned about the
prolonged period of incarceration suffered by the
appellant – Manish Sisodia. In P. Chidambaram v.
Directorate of Enforcement (2020) 13 SCC 791,
the appellant therein was granted bail after being
kept in custody for around 49 days [P.
Chidambaram v. Central Bureau of
Investigation (2020) 13 SCC 337], relying on the
Constitution Bench in Shri Gurbaksh Singh
Sibbia and Others v. State of Punjab (1980) 2
SCC 565, and Sanjay Chandra v. Central Bureau
of Investigation (2012) 1 SCC 40, that even if the
allegation is one of grave economic offence, it is not
a rule that bail should be denied in every case.
Ultimately, the consideration has to be made on a
case to case basis, on the facts. The primary object
is to secure the presence of the accused to stand
trial. The argument that the appellant therein was a
flight risk or that there was a possibility of
tampering with the evidence or influencing the
witnesses, was rejected by the Court. Again, in
Satender Kumar Antil v. Central Bureau of
Investigation and Another (2022) 10 SCC 51, this
Court referred to Surinder Singh Alias Shingara
Singh v. State of Punjab (2005) 7 SCC 387 and
Kashmira Singh v. State of Punjab (1977) 4 SCC
16
291, to emphasise that the right to speedy trial is a
fundamental right within the broad scope of Article
21 of the Constitution. In Vijay Madanlal
Choudhary (supra), this Court while highlighting
the evil of economic offences like money laundering,
and its adverse impact on the society and citizens,
observed that arrest infringes the fundamental right
to life. This Court referred to Section 19 of the PML
Act, for the in-built safeguards to be adhered to by
the authorised officers to ensure fairness, objectivity
and accountability. [See also Pankaj Bansal v.
Union of India and Ors. 2023 SCC OnLine SC
1244] Vijay Madanlal Choudhary (supra), also
held that Section 436A of the Code can apply to
offences under the PML Act, as it effectuates the
right to speedy trial, a facet of the right to life,
except for a valid ground such as where the trial is
delayed at the instance of the accused himself. In
our opinion, Section 436A should not be construed
as a mandate that an accused should not be
granted bail under the PML Act till he has suffered
incarceration for the specified period. This Court, in
Arnab Manoranjan Goswami v. State of
Maharashtra and Others (2021) 2 SCC 427, held
that while ensuring proper enforcement of criminal
law on one hand, the court must be conscious that
liberty across human eras is as tenacious as
tenacious can be.
27. The appellant – Manish Sisodia has argued that
given the number of witnesses, 294 in the
prosecution filed by the CBI and 162 in the
prosecution filed by the DoE, and the documents
31,000 pages and 25,000 pages respectively, the
fact that the CBI has filed multiple charge sheets,
the arguments of charge have not commenced. The
trial court has allowed application of the accused for
furnishing of additional documents, which order
has been challenged by the prosecution under
Section 482 of the Code before the High Court. It
was stated at the Bar, on behalf of the prosecution
that the said petition under Section 482 will be
withdrawn. It was also stated at the Bar, by the
17
prosecution that the trial would be concluded
within next six to eight months.
28. Detention or jail before being pronounced guilty
of an offence should not become punishment
without trial. If the trial gets protracted despite
assurances of the prosecution, and it is clear that
case will not be decided within a foreseeable time,
the prayer for bail may be meritorious. While the
prosecution may pertain to an economic offence, yet
it may not be proper to equate these cases with
those punishable with death, imprisonment for life,
ten years or more like offences under the Narcotic
Drugs and Psychotropic Substances Act, 1985,
murder, cases of rape, dacoity, kidnaping for
ransom, mass violence, etc. Neither is this a case
where 100/1000s of depositors have been
defrauded. The allegations have to be established
and proven. The right to bail in cases of delay,
coupled with incarceration for a long period,
depending on the nature of the allegations, should
be read into Section 439 of the Code and Section 45
of the PML Act. The reason is that the constitutional
mandate is the higher law, and it is the basic right
of the person charged of an offence and not
convicted, that he be ensured and given a speedy
trial. When the trial is not proceeding for reasons
not attributable to the accused, the court, unless
there are good reasons, may well be guided to
exercise the power to grant bail. This would be truer
where the trial would take years.
29. In view of the assurance given at the Bar on
behalf of the prosecution that they shall conclude
the trial by taking appropriate steps within next six
to eight months, we give liberty to the appellant –
Manish Sisodia to move a fresh application for bail
in case of change in circumstances, or in case the
trial is protracted and proceeds at a snail’s pace in
next three months. If any application for bail is filed
in the above circumstances, the same would be
considered by the trial court on merits without
being influenced by the dismissal of the earlier bail
18
application, including the present judgment.
Observations made above, re.: right to speedy trial,
will, however, be taken into consideration. The
appellant – Manish Sisodia may also file an
application for interim bail in case of ill health and
medical emergency due to illness of his wife. Such
application would be also examined on its own
merits.”
29. A perusal of the aforesaid would reveal that this Court
was concerned about the prolonged period of incarceration
suffered by the appellant. After considering various earlier
pronouncements, this Court emphasised that the right to
speedy trial is a fundamental right within the broad scope of
Article 21 of the Constitution. Relying on Vijay Madanlal
Choudhary and Others v. Union of India and Others3,
this Court observed that Section 436A Cr.P.C. should not be
construed as a mandate that an accused should not be
granted bail under the PMLA till he has suffered
incarceration for the specified period. This Court recorded
the assurance given by the prosecution that they shall
conclude the trial by taking appropriate steps within next 6-8
months. This Court, after recording the said submissions,
granted liberty to the appellant to move a fresh application
for bail in case of change in circumstances or in case the trial
3
(2022) SCC OnLine SC 929 : 2022 INSC 756
19
was protracted and proceeded at a snail’s pace in next three
months. This Court observed that if any application was
filed, the same would be considered by the trial court on
merits without being influenced by the dismissal of the
earlier bail applications including its own judgment. It
further observed that the observations made regarding the
right to speedy trial will be taken into consideration.
30. Since the trial proceeded at a snail’s pace in the period
after three months of the first order of this Court, the
appellant filed the second application for bail before the trial
court. The same came to be rejected by the trial court on
30th April 2024. It can thus be seen that it took a period of
almost three months for the trial court to decide the said
application. By the time the appellant approached the High
Court, a period of more than six months had elapsed from
the date on which the first order of this Court was passed.
The same also came to be rejected on 21st May 2024.
31. When the appellant approached this Court in the
second round and when the second order was passed by this
Court on 4th June 2024, a period of 7 months and 4 days
had elapsed from the date of the first order of this Court.
20
However, this Court took into consideration the statement of
the learned Solicitor General that the investigation would be
concluded and final complaint/charge-sheet would be filed
expeditiously and at any rate on or before 3rd July 2024 and
thereafter, the trial court would be free to proceed with the
trial. It, after observing that “having regard to the fact that
the period of 6-8 months fixed by this Court in its first order
having not come to an end”, disposed of the petitions with
liberty to the appellant to revive his prayer afresh after filing
of the final complaint/charge-sheet.
32. It could thus be seen that this Court had granted liberty
to the appellant to revive his prayer after filing of the chargesheet. Now, relegating the appellant to again approach the
trial court and thereafter the High Court and only thereafter
this Court, in our view, would be making him play a game of
“Snake and Ladder”. The trial court and the High Court have
already taken a view and in our view relegating the appellant
again to the trial court and the High Court would be an
empty formality. In a matter pertaining to the life and liberty
of a citizen which is one of the most sacrosanct rights
21
guaranteed by the Constitution, a citizen cannot be made to
run from pillar to post.
33. A careful reading of the second order of this Court dated
4th June 2024 would show that this Court recorded that they
did not propose to go into the arguments or dwell upon it in
view of the liberty granted in the first order of this Court.
Thereafter, this Court noticed the assurance of the learned
Solicitor General that the investigation would be concluded
and final complaint/charge-sheet would be filed at any rate on
or before 3rd July 2024. This Court further observed in its
second order that since the period of 6-8 months fixed by it in
its first order had not come to an end, it was inclined to
dispose of this petition with liberty to the appellant to revive
his prayer. It will be a travesty of justice to construe that the
carefully couched order preserving the right of the appellant to
revive his prayer for grant of special leave against the High
Court order, to mean that he should be relegated all the way
down to the trial court. The memorable adage, that procedure
is a hand maiden and not a mistress of justice rings loudly in
our ears.
22
34. In this respect, we may also gainfully refer to one of the
recent pronouncements by a bench of this Court to which
one of us (B.R. Gavai, J.) was a member in the case of Prabir
Purkayastha v. State (NCT of Delhi)4, which reads thus:
“21. The Right to Life and Personal Liberty is the
most sacrosanct fundamental right guaranteed
under Articles 20, 21 and 22 of the Constitution of
India. Any attempt to encroach upon this
fundamental right has been frowned upon by this
Court in a catena of decisions. In this regard, we
may refer to following observations made by this
Court in the case of Roy V.D. v. State of Kerala3:—
“7. The life and liberty of an individual is
so sacrosanct that it cannot be allowed to
be interfered with except under the
authority of law. It is a principle which
has been recognised and applied in all
civilised countries. In our Constitution
Article 21 guarantees protection of life
and personal liberty not only to citizens of
India but also to aliens.””
35. In our view, the liberty reserved by this Court vide its
second order, to revive the request of the appellant will have
to be construed as a liberty given by this Court to revive his
prayer afresh after filing of the final complaint/charge-sheet.
Undisputedly, the present appeals have been filed after the
final complaint/charge-sheet has been filed by the
4 2024 SCC OnLine SC 934 : 2024 INSC 414
23
respondents. In that view of the matter, we are not inclined
to entertain the preliminary objection and the same is
rejected.
CONSIDERATION AS TO WHETHER THE APPELLANT IS
ENTITLED FOR BAIL:
36. Having rejected the preliminary objection, we will
proceed to consider as to whether in the facts and
circumstances of the present case, the appellant is entitled to
grant of bail or not.
37. Insofar as the contention of the learned ASG that since
the conditions as provided under Section 45 of the PMLA are
not satisfied, the appellant is not entitled to grant of bail is
concerned, it will be apposite to refer to the first order of this
Court. No doubt that this Court in its first order in paragraph
25, after recapitulating in paragraph 24 as to what was
stated in the charge-sheet filed by the CBI against the
appellant, observed that, in view of the aforesaid discussion,
the Court was not inclined to accept the prayer for grant of
bail at that stage. However, certain paragraphs of the said
order cannot be read in isolation from the other paragraphs.
The order will have to be read in its entirety. In paragraph
24
28 of the said order, this Court observed that the right to bail
in cases of delay, coupled with incarceration for a long
period, depending on the nature of the allegations, should be
read into Section 439 Cr.P.C. and Section 45 of the PMLA.
The Court held that the constitutional mandate is the higher
law, and it is the basic right of the person charged of an
offence and not convicted that he be ensured and given a
speedy trial. It further observed that when the trial is not
proceeding for reasons not attributable to the accused, the
court, unless there are good reasons, would be guided to
exercise the power to grant bail. The Court specifically
observed that this would be true where the trial would take
years. It could thus clearly be seen that this Court, in the
first round of litigation between the parties, has specifically
observed that in case of delay coupled with incarceration for
a long period and depending on the nature of the allegations,
the right to bail will have to be read into Section 45 of PMLA.
38. A Division Bench of this Court in the case of
Ramkripal Meena v. Directorate of Enforcement5 was
considering an application of the petitioner therein who was
5 SLP(Crl.) No. 3205 of 2024 dated 30.07.2024
25
to receive a bribe of rupees five crore and from whom, an
amount of Rs.46,00,000/- was already recovered. In the said
case, the petitioner was arrested on 26th January 2022 in
connection with FIR No. 402/2021 registered against him for
the offences punishable under Sections 406, 420, 120B of
IPC and Section 4/6 of the Rajasthan Public Examination
(Prevention of Unfair Means) Act, 1992. He was released on
bail by this Court vide order dated 18th January 2023.
Thereafter, the petitioner was arrested by the ED on 21st
June 2023. The Court observed thus:
“7. Adverting to the prayer for grant of bail in the
instant case, it is pointed out by learned counsel for
ED that the complaint case is at the stage of
framing of charges and 24 witnesses are proposed
to be examined. The conclusion of proceedings,
thus, will take some reasonable time. The petitioner
has already been in custody for more than a year.
Taking into consideration the period spent in
custody and there being no likelihood of conclusion
of trial within a short span, coupled with the fact
that the petitioner is already on bail in the predicate
offence, and keeping in view the peculiar facts and
circumstances of this case, it seems to us that the
rigours of Section 45 of the Act can be suitably
relaxed to afford conditional liberty to the petitioner.
Ordered accordingly.”
39. In the light of the specific observations of this Court in
paragraph 28 of the first order, we are not inclined to accept
26
the submission of the learned ASG that the provisions of
Section 45 of the PMLA would come in the way of
consideration of the application of the appellant for grant of
bail.
40. From the first order of this Court, it would be clear that
an assurance was given at the Bar on behalf of the
prosecution that they shall conclude the trial by taking
appropriate steps within next 6-8 months. In view of the
said statement, this Court did not consider the application of
the appellant for bail at that stage, however, granted liberty
to the appellant to move a fresh application for bail in case of
change in circumstances, or in case the trial is protracted
and proceeded at a snail’s pace in next three months.
Though, this Court observed that if any application for bail
was filed on the grounds mentioned in paragraph 29, the
same would be considered by the trial court without being
influenced by the dismissal of the earlier bail applications
including the present judgment, however, it clarified that the
observations made by the Court with regard to right to
speedy trial would be taken into consideration. The liberty
was also granted to the appellant to file an application for
27
interim bail in case of ill-health and medical emergency due
to illness of his wife.
41. A perusal of the impugned judgment and order would
reveal that though the learned Single Judge of the High
Court has dismissed the applications for bail on merits, on
medical grounds, it has permitted the appellant to visit his
residence to meet his wife in custody once every week.
42. It could thus clearly be seen that this Court expected
the trial to be concluded within a period of 6-8 months. The
liberty was reserved to approach afresh if the trial did not
conclude within the period of 6-8 months. The liberty was
also granted in case the trial proceeded at a snail’s pace in
next three months.
43. A perusal of the material placed on record would clearly
reveal that far from the trial being concluded within a period
of 6-8 months, it is even yet to commence. Though in the
first order of this Court, liberty was reserved to move afresh
for bail if the trial proceeded at a snail’s pace within a period
of three months from the date of the said order, the
commencement of the trial is yet to see the light of the day.
In these circumstances, in view of the first order of this
28
Court, the appellant was entitled to renew his request. When
the appellant renewed his request, the learned Special Judge
(trial court) as well as the High Court was required to
consider the said applications in the light of the observations
made by this Court in paragraphs 28 and 29 of the first
order. In paragraph 29 of the first order, this Court
specifically observed that though the observations on the
aspect of merit were not binding, the observations of right to
speedy trial were required to be taken into consideration.
44. The learned Special Judge and the learned Single Judge
of the High Court have considered the applications on merits
as well as on the grounds of delay and denial of right to
speedy trial. We see no error in the judgments and orders of
the learned Special Judge as well as the High Court in
considering the merits of the matter. In view of the
observations made by this Court in the first order, they were
entitled to consider the same. However, the question that
arises is as to whether the trial court and the High Court
have correctly considered the observations made by this
Court with regard to right to speedy trial and prolonged
period of incarceration. The courts below have rejected the
29
claim of the appellant applying the triple test as
contemplated under Section 45 of the PMLA. In our view, this
is in ignorance of the observations made by this Court in
paragraph 28 of the first order wherein this Court specifically
observed that right to bail in cases of delay coupled with
incarceration for a long period should be read into Section
439 Cr.P.C. and Section 45 of the PMLA.
45. The trial court, in its order, has held that the appellant
individually and along with different accused persons have
been filing one or the other applications/making oral
submissions frequently. It further observed that some of
them were frivolous. It was observed that this was apparently
done as a concerted effort for accomplishing the shared
purpose of causing delay in the matter. The trial court
therefore rejected the contention of the appellant that he had
not contributed to delay in proceedings or that the case has
been proceeding at a snail’s pace. However, in the very
subsequent paragraph i.e., paragraph 80, the court observed
that, in order to avoid any delay and considering the time
being taken by the counsel for the accused in inspecting the
“un-relied upon documents”, it had vide order dated 18th
30
April 2024 put a query to the prosecution if the entire “unrelied upon documents” can be provided to the accused
persons in a digitized form. It further recorded that the ED
accepted the suggestion that it would expedite the
proceedings. However, some time was sought to consider the
same. A perusal of the compliance report filed by the
Assistant Director of ED dated 7th May 2024 which could be
found at page 757 of the paperbook, would reveal that the
Cyber Lab has informed that it would take 70-80 days to
prepare one copy (cloning) of the data contained in the said
unrelied digital devices.
46. It could further be seen that, though it has been
submitted on behalf of the ED that hundreds of applications
have been filed for supply of “un-relied upon documents”, the
record would not substantiate the said position. Though
various applications have been filed by different accused
persons, insofar as the present appellant is concerned, he
has filed only 13 applications in the CBI matter and 14 in the
ED matter. It would reveal that some of the applications are
for seeking permission to meet his wife or permission to file
vakalatnama, to put signature on the documents, seeking
31
permission to sign a cheque etc. Most of the applications are
for supply of missing documents and legible copies under
Section 207/208 Cr.P.C. Some of the applications are for
inspection of the “un-relied upon documents”. It is pertinent
to note that all these applications have been allowed by the
learned trial court. It is further pertinent to note that some
of these orders were also challenged before the High Court
wherein stay was granted. However, a statement was made
on behalf of the prosecution before this Court when the first
order was passed that the said petitions filed under Section
482 Cr.P.C would be withdrawn. The said statement is
recorded in paragraph 27 of the first order of this Court. We
may state that, when we specifically asked the learned ASG
to point out any order wherein the learned trial judge found
any of the applications of the appellant to be frivolous, not a
single order could be pointed out.
47. In that view of the matter, we find that the finding of the
learned trial judge that it is the appellant who is responsible
for delaying the trial is not supported by the record. The
learned Single Judge of the High Court endorses the finding
of the trial court on the ground that the accused persons
32
have taken three months’ time from 19th October 2023 to 19th
January 2024 for inspection of “un-relied upon documents”
despite repeated directions from the learned trial court to
conclude the same expeditiously. It is to be noted that there
are around 69,000 pages of documents involved in both the
CBI and the ED matters. Taking into consideration the huge
magnitude of the documents involved, it cannot be stated
that the accused is not entitled to take a reasonable time for
inspection of the said documents. In order to avail the right
to fair trial, the accused cannot be denied the right to have
inspection of the documents including the “un-relied upon
documents”.
48. It is further to be noted that a perusal of the second
order of this Court would itself reveal that this Court
recorded the submissions of the learned Solicitor General,
which were made on instructions, that the investigation
would be concluded and final complaint/charge-sheet would
be filed expeditiously and at any rate on or before 3rd July
2024. Accordingly, 8th charge-sheet has been filed on 28th
June 2024 by the ED. It could thus be seen that, even
according to the respondents, the investigation was to be
33
concluded on or before 3rd July 2024. In that view of the
matter, we find that the contention raised by the learned
ASG is self-contradictory. If the investigation itself was to
conclude on or before 3rd July 2024, the question is how
could the trial have commenced prior to that? If the
investigation itself was to conclude after a period of 8 months
from the date of the first order of this Court, there was no
question of the trial being concluded within a period of 6-8
months from the date of the first order of this Court. We find
that both the High Court and the trial court have failed to
take this into consideration.
49. We find that, on account of a long period of
incarceration running for around 17 months and the trial
even not having been commenced, the appellant has been
deprived of his right to speedy trial.
50. As observed by this Court, the right to speedy trial and
the right to liberty are sacrosanct rights. On denial of these
rights, the trial court as well as the High Court ought to have
given due weightage to this factor.
51. Recently, this Court had an occasion to consider an
application for bail in the case of Javed Gulam Nabi Shaikh
34
v. State of Maharashtra and Another6 wherein the
accused was prosecuted under the provisions of the Unlawful
Activities (Prevention) Act, 1967. This Court surveyed the
entire law right from the judgment of this Court in the cases
of Gudikanti Narasimhulu and Others v. Public
Prosecutor, High Court of Andhra Pradesh7
, Shri
Gurbaksh Singh Sibbia and Others v. State of Punjab8
,
Hussainara Khatoon and Others (I) v. Home Secretary,
State of Bihar9, Union of India v. K.A. Najeeb10 and
Satender Kumar Antil v. Central Bureau of
Investigation and Another11. The Court observed thus:
“19. If the State or any prosecuting agency
including the court concerned has no wherewithal
to provide or protect the fundamental right of an
accused to have a speedy trial as enshrined under
Article 21 of the Constitution then the State or any
other prosecuting agency should not oppose the
plea for bail on the ground that the crime
committed is serious. Article 21 of
the Constitution applies irrespective of the nature of
the crime.”
52. The Court also reproduced the observations made in
Gudikanti Narasimhulu (supra), which read thus:
6 2024 SCC OnLine SC 1693
7
(1978) 1 SCC 240 : 1977 INSC 232
8
(1980) 2 SCC 565 : 1980 INSC 68
9
(1980) 1 SCC 81 : 1979 INSC 34
10 (2021) 3 SCC 713 : 2021 INSC 50
11 (2022) 10 SCC 51 : 2022 INSC 690
35
“10. In the aforesaid context, we may remind the
trial courts and the High Courts of what came to be
observed by this Court in Gudikanti
Narasimhulu v. Public Prosecutor, High Court
reported in (1978) 1 SCC 240. We quote:
“What is often forgotten, and therefore
warrants reminder, is the object to keep a
person in judicial custody pending trial or
disposal of an appeal. Lord Russel, C.J.,
said [R v. Rose, (1898) 18 Cox]:
“I observe that in this case bail
was refused for the prisoner. It
cannot be too strongly impressed
on the, magistracy of the country
that bail is not to be withheld as a
punishment, but that the
requirements as to bail are merely
to secure the attendance of the
prisoner at trial.””
53. The Court further observed that, over a period of time,
the trial courts and the High Courts have forgotten a very
well-settled principle of law that bail is not to be withheld as
a punishment. From our experience, we can say that it
appears that the trial courts and the High Courts attempt to
play safe in matters of grant of bail. The principle that bail is
a rule and refusal is an exception is, at times, followed in
breach. On account of non-grant of bail even in straight
forward open and shut cases, this Court is flooded with huge
number of bail petitions thereby adding to the huge
36
pendency. It is high time that the trial courts and the High
Courts should recognize the principle that “bail is rule and
jail is exception”.
54. In the present case, in the ED matter as well as the CBI
matter, 493 witnesses have been named. The case involves
thousands of pages of documents and over a lakh pages of
digitized documents. It is thus clear that there is not even
the remotest possibility of the trial being concluded in the
near future. In our view, keeping the appellant behind the
bars for an unlimited period of time in the hope of speedy
completion of trial would deprive his fundamental right to
liberty under Article 21 of the Constitution. As observed time
and again, the prolonged incarceration before being
pronounced guilty of an offence should not be permitted to
become punishment without trial.
55. As observed by this Court in the case of Gudikanti
Narasimhulu (supra), the objective to keep a person in
judicial custody pending trial or disposal of an appeal is to
secure the attendance of the prisoner at trial.
56. In the present case, the appellant is having deep roots
in the society. There is no possibility of him fleeing away from
37
the country and not being available for facing the trial. In any
case, conditions can be imposed to address the concern of
the State.
57. Insofar as the apprehension given by the learned ASG
regarding the possibility of tampering the evidence is
concerned, it is to be noted that the case largely depends on
documentary evidence which is already seized by the
prosecution. As such, there is no possibility of tampering
with the evidence. Insofar as the concern with regard to
influencing the witnesses is concerned, the said concern can
be addressed by imposing stringent conditions upon the
appellant.
CONCLUSION:
58. In the result, we pass the following order:
(i) The appeals are allowed;
(ii) The impugned judgment and order dated 21st May
2024 passed by the High Court of Delhi in Bail
Application Nos. 1557 and 1559 of 2024 is quashed
and set aside;
(iii) The appellant is directed to be released on bail in
connection with ED Case No. HIU-II/14/2022
38
registered against the appellant by the ED and FIR
No. RC0032022A0053 of 2022 registered against the
appellant by the CBI on furnishing bail bonds for a
sum of Rs.10,00,000/- with two sureties of the like
amount;
(iv) The appellant shall surrender his passport with the
Special Court;
(v) The appellant shall report to the Investigating Officer
on every Monday and Thursday between 10-11 AM;
and
(vi) The appellant shall not make any attempt either to
influence the witnesses or to tamper with the
evidence.
59. Pending application(s), if any, shall stand disposed of in
the above terms.
..............................J.
(B.R. GAVAI)
..............................J.
(K.V. VISWANATHAN)
NEW DELHI;
AUGUST 09, 2024.
