Brief Facts
- The Appellant is an accused in case alleging irregularities in the framing and implementation of Delhi’s Excise Policy for the year 2021-22. The Appellant was originally arrested by CBI on 22.07.2022 and thereafter, the Appellant was arrested by the ED on 09.03.2023.
- In the first round of the bail proceedings, the Bail Applications of the Appellant was disposed by the Supreme Court vide its order dated 30.10.2023 on the assurance of the State that they shall conclude the trial by taking appropriate steps within next 6-8 months. In view of the said statement, the Supreme 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.
- Thereafter, the Appellant filed the fresh bail application before the Trial Court, which was rejected by the Trial Court vide its order dated 30.04.2024. Thereafter, the Bail Application was further rejected by the High Court vide its order dated 21.04.2024. The Appellant thereafter approach the Supreme Court and the bail application of the Appellant was disposed by the Supreme Court vide its order dated 04.06.2024 recording the submissions 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 immediately thereafter, the trial court would be free to proceed with the trial. Court further 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.
- Since the trial could not be completed within the time fixed by the Court in its order dated 30.10.2023, the Appellant approached the Supreme Court in the third round of litigation in light of the liberty granted by the Court vide its order dated 04.06.2024.
Issues
- Whether the fresh Bail Application can be filed before the Supreme Court challenging the Order of the High Court, when the earlier Bail Application challenging the same Order of the High Court has been rejected by granting the liberty to the Appellant to file bail application after filing of the Chargesheet?
- Factors to be considered while dealing with the bail applications for the offences concerning PMLA Act.
- Whether right of life and liberty under Article 21 would supersede the twin conditions of section 45 of the PMLA when the trail is being carried out at snail’s pace and the prosecution has proposed to examine 493 witnesses?
- Whether the Trial Court and High Court are required to take into consideration the prolonged trial while considering the bail application of the accused?
Held
- The Supreme Court allowed the appeal of the Appellant and directed that the Appellant be released on bail. The findings of the Court are as under:
Maintainability of the Bail Application
- 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. 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.
- 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 guaranteed by the Constitution, a citizen cannot be made to run from pillar to post.
- 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 respondents. In that view of the matter, we are not inclined to entertain the preliminary objection and the same is rejected.
Article 21 of the Constitution overrides the twin condition of section 45
- The Supreme Court relied on its earlier order dated 30.10.2023 (Para 28 and 29) passed in the same matter wherein the 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.
Prolonged delay in Trial entitles the Appellant to bail
- 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.
- 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 thisCourt, the appellant was entitled to renew his request.
- 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
- 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.
Delay in trial is factor which must be considered by the Lower Courts
- As observed by the 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.
- 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 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”.
Other conditions of bail are duly satisfied
- In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State.
- 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.
Relevant Para No.
- 30, 31, 32, 33, 35, 49 and 50