1. Mr. Purnendu Chakravarty and Shri L.K. Singh, learned counsel for the applicant and Mr. S.B. Pandey, Senior Advocate and Additional Solicitor General of India with Mr. Shiv P. Shukla, Advocate for the Enforcement Directorate are present.
2. This petition under Section 482 Cr.P.C. has been filed by the applicant with the following prayers :-
(a) to quash and set aside the impugned order dated 05.01.2021, passed by Shri Dinesh Kumar Sharma-III, Special Judge (P.M.L. Act)/Sessions Judge, Lucknow in Bail Application No.7064 of 2020 (C.N.R. No.UPLK01-013951-2020), titled as "Chander Prakash Wadhwa Vs. Directorate of Enforcement" contained as Annexure No.1 to present Application under section 482 Cr.P.C.
(b) to allow the interim bail application on medical grounds filed by the applicant before the Ld. PMLA Court, Lucknow and grant him interim bail on medical grounds for a period of 6 months in ECIR/06/PMLA/LKZO/2019, Under Section: 3/4 of Prevention of Money Laundering Act, 2002, Police Station : Directorate of Enforcement, District : Lucknow pending before the Court of Special Judge, PMLA, Lucknow.
(c) it is further prayed that the applicant may kindly be released on interim bail during the pendency of the present Application under Section 482 Cr.P.C. in the interest of justice in ECIR/06/PMLA/LKZO/2019, Under Section : 3/4 of Prevention of Money Laundering Act, 2002, Police Station : Directorate of Enforcement, District : Lucknow pending before the Court of Special Judge, PMLA, Lucknow.
(d) to issue any other order or direction which may be deemed just and proper in the interest of justice in favour of the applicant.
3. Factually, learned counsel for the applicant has submitted that applicant is innocent and has falsely been implicated in the criminal case which was registered by EOW, Delhi vide FIR No.178/2017, under Sections 406, 409, 420, 120-B IPC. Subsequently, he was arrested by the Directorate of Enforcement, Lucknow Division on 18.12.2020.
4. Learned counsel for the applicant has further submitted that when applicant was under incarceration in Delhi, he developed some dental problem, hence an application for interim bail was moved by applicant before the learned Session Judge, (East Delhi), Karkardooma Courts, Delhi. Learned Addl. Session Judge (East Delhi), Karkardooma Courts, Delhi had allowed the interim bail application of applicant on 30.04.2020, by considering the prevailing circumstances of Covid-19 pandemic and dental problem and the health condition of the applicant as reflected from status report dated 28.04.2020. The court concerned had released the applicant on interim bail for the period of 60 days. The aforesaid order of learned Additional Session Judge was confirmed by the High Court of Delhi in its order dated 14.05.2020, vide Bail Application No.900/2020, Chander Prakash Wadhwa Vs. State (Govt. of NCT of Delhi and another).
5. Learned counsel for the applicant has also submitted that after release from the custody, applicant took treatment of his teeth from Sir Ganga Ram Hospital. As he was suffering from some neurological and cardiac problems also, he undergone MRI brain on 23rd July, 2020 and CT Scan of heart on 14.08.2020 regarding which the doctor concerned has given a certificate dated 23.10.2020 that applicant is advised to take bed rest and home care during treatment of 50 days. Thereafter, the left ankle of applicant was fractured which was examined by the doctor on 10th November, 2020. Therefore, he could not surrender before the court concerned as was directed by the High Court of Delhi in its order dated 14.05.2020. The authorities of Directorate of Enforcement Division, Lucknow arrested the applicant from his residence on 18.12.2020.
6. Learned counsel for the applicant mentioned that in E.D. Case No.ECIR/06/PMLA/LKZO/2019, before Special Court of PML Act, Lucknow, applicant moved his regular bail application which is pending. Since applicant was fighting with physical problems, hence he moved an application for interim bail application in above ED Case No.ECIR/06/PMLA/LKZO/2019. Learned Special Judge, PMLA/Session Judge, Lucknow called report from jail authorities regarding the health condition of applicant. The Superintendent of District Jail, Lucknow with reference to the opinion of Senior Consultant of District Jail Hospital, Lucknow informed the court that prior to admission in jail, the applicant was under treatment for hypertension with cardiac and neurological problem associated with post operated distal fibula fracture. At present the applicant is in jail hospital for the investigation and treatment of his ailment. At present the health condition of the patient is satisfactory. Learned Session Judge/Special Judge, PMLA, considered the report of Jail Superintendent regarding the health condition of the applicant and rejected his interim bail application on 05.01.2021.
7. Per contra, the learned counsel for the Enforcement Directorate, learned Additional Solicitor General/Senior Advocate vehemently opposed the prayer of applicant. They submitted that applicant is an accused of social crime. At present he is under safety and security of jail authorities, who are monitoring his health condition as according to the report of jail authorities, the health condition of applicant is satisfactory. Learned Additional Solicitor General and Special Counsel for Enforcement Directorate have further submitted that applicant hereby challenging interim bail application rejection order of Special Judge, PMLA/Session Judge, Lucknow has prayed to release him on interim bail, whereas under Section 482 Cr.P.C. the Court has no jurisdiction to grant bail.
8. Learned counsel for the applicant, in support of his argument, has referred the judgment of Arnab Manoranjan Goswami Vs. The State of Maharashtra and ors, 2020 SCC online Supreme Court 946, whereas learned Additional Solicitor General and learned counsel for Enforcement Directorate have based their arguments on the following judgment :-
(i) CBI v. Keshub Mahindra & others, 2011 SCC 216
(ii) Popular Muthiah v. State represented by Inspector of Police, 2006 (7) SCC 296 : 2006 (3) SCC (Cri) 245
(iii) Divine Retreat Centre v. State of Kerala, AIR 2008 SC 1614
(iv) State of Punjab v. Davinder Pal Singh Bhullar, 2011 14 SCC 770
(v) Simrikhia v. Dolley Mukherjee, 1990 (2) SCC 437
(vi) Janta Dal Vs. H.S. Choudhary and others, AIR 1993 SC 892
9. Heard learned counsel for the parties and perused the record.
10. So far as the legality of interim bail rejection order of Learned Special Judge, PMLA/Session Judge is concern, it reveals from the report of dentist Dr. Vikas Sethi that applicant has taken treatment of his dental problem in the month of June and July, 2020. It reveals from perusal of applicant's MRI report of brain that most of the brain part are normal in condition. The certificate of cardiologist dated 23.10.2020 shows that applicant has been advised for taking bed rest and home care during the treatment period of 50 days. The discharge summary from Department of Orthopedic, shows that applicant has also taken treatment of ankle fracture. Applicant was admitted in District Jail, Lucknow on 26.12.2020. Jail authorities also provided medical facility for the treatment of ailment of prisoners. It depicts from the report of senior consultant of District Jail Hospital, Lucknow that the applicant has been kept in hospital for the examination and treatment of his ailment for which applicant was suffering prior to admission in jail. The Jail Superintendent has concluded that health condition of the applicant is satisfactory at present. Relying the report of jail authorities learned Special Judge, PMLA Court/Session Judge, Lucknow has rejected the interim bail application of applicant. Since any other report regarding any further complication in health condition of applicant was not available before learned trial court, therefore, apparently, no illegality is found in the aforesaid rejection order.
11. So far as the jurisdiction of this Court under Section 482 Cr.P.C. is concerned, it is different from the jurisdiction so vested in the Court under Article 226, 227 of the Constitution of India and Section 439 of Cr.P.C. Provisions of Section 482 Cr.P.C. reads as under :-
"482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice"
12. In view of the provision, this Court has inherent power under Section 482 Cr.P.C. to correct the errors of the subordinate courts and pass such order as may be necessary to do justice to the parties, and/or prevent the abuse of process of court. A rider has also been imposed by the judicial pronouncements that such inherent power is required to be exercised sparingly and such inherent power under Section 482 Cr.P.C. can be invoked in respect of matters covered by the provisions of the Code, unless there is specific provision to redress the grievance of the aggrieved party.
13. In Madhu Limaye v. State of Maharashtra, (1997) 4 SCC 551, the Hon'ble Apex Court has provided a guideline in the following words : -
"At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions :-
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
(emphasized by court)
14. The specific provision under the Code of Criminal Procedure has been enacted for bail, which is for the Court of Session as well as for the High Court. The interim bail application is also the subject matter of Section 439 Cr.P.C.
15. On the point of inherent power of High Court as enacted in Section 482 of the Code, Hon'ble Supreme Court in Janata Dal Vs. H.S. Chowdhary and others, (1992) 4 SCC 305, has held as under :-
"131. Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex aliquid alicui concedit, concedere videtur id sine quo ipso, ess uon potest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.
132. The criminal courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
136. Thus, the inherent power under this Section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. In relation to exercise of inherent powers of the High Court, it has been observed in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551:1978 SCC (Cri) 10: AIR 1978 SC 47 : (1978) 1 SCR 749 that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party and that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice and that it should not be exercised as against the express bar of law engrafted in any other provision of the Code. Vide (1) Talab Hazi Hussain v. Madhukar Purshottam , 1958 SCR 1226 : AIR 1958 SC 376: 1958 Cri LJ 701; (2) Khushi Ram v. Hashim, AIR 1959 SC 542: 1959 Cri LJ 658; and (3) State of Orissa v. Ram Chander Agarwala, (1979) 2 SCC 305: 1979 SCC (Cri) 462 : AIR 1979 SC 87 : (1979) 1 SCR 114.
137. This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal ,1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426 : 1990 Supp 3 SCR 259 to which both of us were parties have dealt with this question at length and enunciated the law listing out the circumstances under which the High Court can exercise its jurisdiction in quashing proceedings. We do not, therefore, think it necessary in the present case to extensively deal with the import and intendment of the powers under Section 397, 401 and 482 of the Code."
16. The Hon'ble Apex Court in the case of State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and others, (2003) 8 SCC 50, has held as under :-
"16.The High Court has also invoked powers under Section 482 CrPC while granting bail to the respondents. Section 482 CrPC saves the inherent power of the High Court. The High Court possesses the inherent powers to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone Courts exist. The power has to be exercised to prevent abuse of the process of the court or to otherwise secure the ends of justice. But this power cannot be resorted to if there is a specific provision in the Code for the redressal of the grievance of the aggrieved party. (See Madhu Limaye v. State of Maharashtra) (1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47. There being a specific provision for grant of bail, the High Court clearly erred in taking recourse to Section 482 CrPC while enlarging the respondents on bail."
(emphasized by court)
17. In Hamida v. Rashid Alias Rasheed and others, (2008) 1 SCC 474, the Hon'ble Apex Court has given guideline regarding the jurisdiction of High Court under Section 482 Cr.P.C., which are as under :-
"7. It is well established principle that inherent power conferred on the High Courts under Section 482 CrPC has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 CrPC were examined in considerable detail in Madhu Limaye v. State of Maharashtra , (1977) 4 SCC 551 : 1978 SCC (Cri) 10 : AIR 1978 SC 47 and it was held as under :
"The following principles may be stated in relation to the exercise of the inherent power of the High Court - (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice ;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code."
8. In State v. Navjot Sandhu, (2003) 6 SCC 641 : 2003 SCC (Cri) 1545 after a review of large number of earlier decisions, it was held as under :
"29..........................The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
9. In Arun Shankar Shukla v. State of U.P., (1999) 6 SCC 146 : 1999 SCC (Cri) 1076, the High Court had entertained a petition under Section 482 CrPC after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal this Court set aside the order of the High Court after reiterating the principle that it is well settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 CrPC could not have been entertained as the accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482 CrPC cannot be entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.
13. Before parting with the case, we feel constrained to observe that in spite of repeated pronouncements of this Court that inherent power under Section 482 CrPC should be exercised sparingly with circumspection in rare cases and that too when miscarriage of justice is done, the High Court entertained the petition under Section 482 CrPC, the ultimate result whereof was that the order of bail granted in favour of the accused for an offence under Section 324, 352 and 506 IPC enured to their benefit even after the offence had been converted into one under Section 304 IPC and also subsequently when charge had been framed against them under Section 302 read with Section 34 IPC. The accused did not remain in custody even for a single day nor did they approach the Court of Chief Judicial Magistrate or Sessions Judge for being granted bail under Section 304 or 302 IPC, yet they got the privilege of bail under the aforesaid offences by virtue of the order passed by the High Court. The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 CrPC at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice."
(emphasized by court)
18. It has been held by three judges bench of High Court of Karnataka in Virabasayya Prabhayya Hallur and Ors. Vs. State of Karnataka, MANU/KA/0003/2003 : -
"12. Whether bail can be granted in exercise of inherent power was considered by the Privy Council in Lala Jairam Das and Ors. v Emperor, MANU/PR/0005/1945 The Privy Council held that Section 561-A of the Code confers no powers; it merely safeguards the existing inherent powers possessed by the High Court. Following the said decision and other cases, the Allahabad High Court in Gore Lal and Ors. v. State, MANU/UP/0167/1958 : AIR 1958 All 667, held that the High Court has no statutory or inherent power to grant bail to, or suspend the execution of the sentence of, a person whose conviction and sentence it has maintained, except where that person has been granted special leave to appeal under Article 136 of the Constitution, and in no other case. The extent to which this inherent powers can be used provided in Section 482 of the Cr. P.C. is settled by the Apex Court in the case of Janata Dal v H.S. Chowdhary and Ors. MANU/SC/0532/1992 : 1993 CriLJ 600 The Apex Court held that :
"Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Civil Procedure Code proceeds on the same principle and deals with the inherent powers of the High Court. The rule of inherent powers has its source in the maxim "Quadolex a liquid alicui concedit, conceder videtur id sine quo ipsa, ess non protest" which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist.
The Criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae, to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.
The inherent power under this section can be exercised by the High Court (1) to give effect to any order passed under the Code; or (2) to prevent abuse of the process of any Court; or (3) otherwise to secure the ends of justice. The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. It should not be exercised as against the express bar of law engrafted in any other provision of the Code. The power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."
(emphasized by court)
19. In view of the above discussion and in the light of law laid down by the Hob'ble Apex Court and High Court, considering that a specific provision has been provided to applicant in Code for redressal of his grievance, this Court has no jurisdiction to grant bail to applicant under Section 482 Cr.P.C. Hence, application is liable to be rejected.
20. Accordingly, the application under Section 482 Cr.P.C. is rejected.
Order Date : 12.02.2021 ML/-