Hearing Manish Sisodia Vs. Directorate of Enforcement, the appeal challenging the judgment and order of May 21, 2024 passed by the Delhi High Court rejecting the grant of bail, the Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan observed: "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." The application was filed for seeking bail in connection with a Enforcement Directorate (ED) case registered against the appellant by the ED and First Information Report (FIR) registered against the appellant by the Central Bureau of Investigation (CBI). The judgement was delivered on August 9, 2024. It was authored by Justice Gavai. Dr. Abhishek Manu Singhvi, Senior Counsel appeared for the appellant and S. V. Raju, Additional Solicitor General (ASG) appeared on behalf of the respondents.
The Supreme Court's 38 page long judgement reads: "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; The appellant is directed to be released on bail in connection with ED Case No. HIU-II/14/2022 registered against the appellant by the ED and FIR No. RC0032022A0053 of 2022 registered against the appellant by the CBI...." Reacting to grant of bail by the Court, Sisodia said,"Lawyer is like God for any person in jail, Abhishek Manu Singhvi is also God for me".
The judgement records Court's opinion in its first order. It reads: "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."
It relied on Court's own decision in Vijay Madanlal Choudhary and Others v. Union of India and Others (2022) to infer 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."
It observed: "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." It recalled the adage: "procedure is a hand maiden and not a mistress of justice."
The Court drew on its decision in the case of Prabir Purkayastha v. State (NCT of Delhi) (2024). It reads :
“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.”” Justice Gavai was part of the bench which decided the release of Prabir Purkayastha, the editor of NewsClick.
Justice Gavai led bench observed: " 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 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."
He observed: 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 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”.
His decision noted that the contentions raised by the Additional Solicitor General was self-contradictory and the failure of both the High Court and the trial court. He observed: "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. 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."
The Court factored in the Court's decision on a bail application in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another (2024) wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. The 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 Pradesh (1978), Shri Gurbaksh Singh Sibbia and Others v. State of Punjab (1980), Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar (1980), Union of India v. K.A. Najeeb (2021) and Satender Kumar Antil v. Central Bureau of Investigation and Another (2022).
After the survey of its own decisions, the Court observed:“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.”
The Court observed: "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 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”."
Justice Gavai observed: "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."
It all began with on the basis of a letter dated July 20, 2022 by Vinai Kumar Saxena, the Lieutenant Governor of Delhi alleging irregularities in the framing and implementation of Delhi’s Excise Policy for the year 2021-22, the Director, Ministry of Home Affairs had directed an enquiry into the matter vide Office Memorandum dated July 22, 2022. On February 26 2023, the appellant came to be arrested by the CBI. Subsequently, the appellant was arrested by the ED on March 9, 2023. After investigation, CBI filed charge-sheet on April 25, 2023 for the offences punishable under Sections 7, 7A, 8 and 12 of the Prevention of Corruption (PC) Act, 1988 read with Sections 420, 201 and 120B of the Indian Penal Code (IPC), 1860. Upon completion of investigation, the ED filed a complaint under Section 3 of the Prevention of Money Laundering Act, 2002 (PMLA) on May 4, 2023.
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