SC Grants Bail U/s. 436A CrPC To Cox & Kings Promoter Ajay Kerkar In PMLA Case, Rejects Argument That Said Power Should Be Exercised By Court Of First Instance
The Supreme Court, while reiterating its landmark judgment in Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors. has reversed the Bombay High Court's order and released Cox and Kings Promoter Ajay Ajit Peter Kerker on bail exercising power under Section 436A of the CrPC in a money laundering case on the grounds of delayed trial.
The Court, while doing so, rejected the argument on behalf of the Enforcement Directorate that the power under Section 436A of the CrPC has to be exercised by the Court of first instance.
The Special Leave Petition was filed by Kerker assailing the order passed by the Bombay High Court refusing to release him on bail on the grounds of delayed trial. Kerkar was arrested by the Enforcement Directorate under Section 4 of the Prevention of Money Laundering Act, 2002.
The Bench of Justice Abhay S. Oka and Justice Ujjal Bhuyan observed, “In the facts of this case, the appellant will complete 31⁄2 years of incarceration on 26th May 2024. Thus, he will complete half of the prescribed sentence. In this case, the trial has not started, as the charge has not been framed. This Court has held that Section 436A of the Code of Criminal Procedure, 1973 (for short "CRPC") will apply even to a case under the PMLA. But the Court can still deny the relief owing to the ground such as where the trial was delayed at the instance of the accused. As stated earlier, here there is no occasion for the appellant to cause the delay in the trial, as even the charge has not been framed. Moreover, there is no other circumstance brought on record which will compel us to deny the benefit of Section 436A of the CRPC to the appellant.”
Senior Advocate Amit Sibal appeared for the Petitioner whereas ASG SV Raju appeared for the Respondent-ED.
The Court laid its emphasis on para 416 of the Vijay Madanlal’s Judgment which read as thus, “"416. The Union of India also recognized the right to speedy trial and access to justice as fundamental rights in their written submissions and, thus, submitted that in a limited situation right of bail can be granted in case of violation of Article 21 of the Constitution. Further, it is to be noted that the Section 436A of the 1973 Code was inserted after the enactment of the 2002 Act. Thus, it would not be appropriate to deny the relief of Section 436A of the 1973 Code which is a wholesome provision beneficial to a person accused under the 2002 Act. However, Section 436A of the 1973 Code, does not provide for an absolute right of bail as in the case of default bail under Section 167 of the 1973 Code. For, in the fact situation of a case, the Court may still deny the relief owing to ground, such as where the trial was delayed at the instance of accused himself."
Kerkar was arrested on November 27, 2020, and before that on March 7, 2020 Central Bureau of Investigation filed an FIR against Cox & Kings Group of Companies alleging bank fraud.
The Supreme Court held that there was no prospect of even the trial commencing, as the charges were not framed. “In these facts, we find that the appellant will be entitled to be enlarged on bail under section 436A of the CRPC on 27th May 2024. Hence, there is no need to have a multiplicity of proceedings. Hence, we allow these appeals and direct that the appellant shall be enlarged on bail under Section 436A of the CRPC on 27th May 2024.”, the Court said.
The High Court had observed, “In view of the dicta of the Supreme Court enunciated hereinabove, there is no question of denying the relief of Section 436A of the Cr.P.C. to the applicant. However, it is submitted by Mr. Venegavkar that one half of the maximum period of imprisonment provided under Section 4 of the PML Act is yet to complete and, therefore, as and when the said period would be over, the applicant would be at liberty to pray for his release in view of Section 436A of the Cr.P.C. It is to be noted that even the right to be enlarged on bail after undergoing detention for a period exceeding one half of the minimum period of imprisonment is not an absolute right. The Court may still deny the relief on the grounds such as delay of the trial at the instance of the accused himself.”
Accordingly, the Court released him on bail and directed the Special Court to pass a formal order fixing the terms and conditions for the grant of bail.
Cause Title: Ajay Ajit Peter Kerkar v. Directorate of Enforcement & Anr.
Appearances:
Petitioner: Senior Advocate Amit Sibal, AOR Malak Manish Bhatt, Advocates Neeha Nagpal, Vishvendra Tomar, Nikunj Mahajan, Rishabh Sharma and Darpan Sachdeva.
Respondents: ASG SV Raju, AORs Mukesh Kumar Maroria, Aaditya Aniruddha Pande, Advocates Zoheb Hussain, Annam Venkatesh, Arkaj Kumar, Bharat Bagla, Sourav Singh, Aditya Krishna, Preet S. Phanse, Adarsh Dubey and Yamini Singh.
