Constitutional Court Can’t Be Restrained From Granting Bail To Accused On Account Of Restrictive Statutory Provisions In Penal Statute: Calcutta HC

The Calcutta High Court emphasised that the Constitutional Court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute.

The Court emphasised thus in a case relating to the Complaint which had its source in an earlier Complaint registered under Sections 120B, 419, 420, 468, and 471 of the Indian Penal Code (IPC) and Sections 20 and 20A of the Indian Telegraph Act, 1885 (ITA).

A Single Bench of Justice Suvra Ghosh observed, “A constitutional Court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-under trial under Article 21 of the Constitution has been infringed. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional Court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part.”

The Bench reiterated that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial and in such a case Article 21 applies irrespective of the seriousness of the crime. It added that the Right to Life and Personal Liberty enshrined under Article 21 of the Constitution is overarching and sacrosanct.

Senior Advocate Sabyasachi Banerjee represented the Petitioner/accused while Advocate Phiroze Edulji represented the Respondent/Enforcement Directorate (ED).

In this case, the Petitioner was arrested in 2023 in connection with a case by the Police investigating the predicate offence and was released on bail by the Additional Chief Judicial Magistrate on the ground that the chargesheet did not disclose the name of the victim. He was also accused in another case and was shown as arrested in the said case after being released on bail. When he was in custody, he was shown as arrested for the offence under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (PMLA). Two separate proceedings were registered against the Petitioner and others on the allegation of running fake call centres. Seeking release on bail, the Petitioner was before the High Court.

The High Court in the above regard, noted, “The primary allegation in the proceeding is against Rakesh Choudhury who is alleged to have been operating fake call centres in the premises in question and to have transferred proceeds of crime to the account of the petitioner. The payment of Rs. 1.50 crores to the petitioner in cash has prima facie not been substantiated.”

The Court said that the said cash transaction surfaced from a purported excel sheet available in the laptop of the one who is neither an accused, nor a witness in the proceeding and that a comprehensive investigation appears to have been done by the ED resulting in overlapping of statements, documents, etc., in both the PMLA cases.

“The E.D. apprehends flight risk of the petitioner and tampering of evidence as well as influencing witnesses by him if enlarged on bail. The case depends on documentary evidence which is in custody of the E.D. There is no scope for the petitioner to tamper with the same. The witnesses cited are official witnesses who are employees of the department and it is expected that the petitioner is not in a position to influence them”, it added.

The Court further noted that the issue of the Petitioner being at flight risk can be addressed by imposing stringent conditions upon him while granting him bail and the investigation has culminated in submission of charge sheet. It said that, further detention is not required for the purpose of custodial interrogation.

Accordingly, the High Court granted bail to the accused upon furnishing a bond of Rs. 10 lakhs.

Cause Title- Kunal Gupta v. Enforcement Directorate

Appearance:

Petitioner: Senior Advocate Sabyasachi Banerjee, Advocates Antarikhya Basu, Minal Palana, and Sayan Mukherjee.

Respondent: Advocates Phiroze Edulji, Arijit Chakraborty, Deepak Sharma, and Swati Singh.

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