Court denied the bail for apprehension of illegal detail/arrest of appellant

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Cases Covered:

ASHISH MITTAL Vs DIRECTORATE OF ENFORCEMENT & ANR

Citations:

Union of India vs. Kunisetty Satyanarayana
Special Director vs. Mohd. Ghulam Ghouse
Kirit Shrimankar vs. Union of India,
Virbhadra Singh vs. Enforcement Directorate & Ors.
State of Haryana vs. Bhajan Lal
Vijay Madanlal Choudhary and Others vs. Union of India and Others,
State of Gujarat vs. Choodamani Parmeshwaran Iyer
Gurbaksh Singh Sibbia vs. State of Punjab
Sushila Aggarwal vs. State (NCT of Delhi)
Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Ors
L. Chandra Kumar vs. Union of India

Facts of the cases:

The immediate provocation for the petitioner to approach the court is summons dated 18.08.2023 issued to him by the Assistant Director, Directorate of Enforcement, Chandigarh under section 50(2) and (3) of the Prevention of Money Laundering Act, 2002 („PMLA‟), requiring the petitioner to appear before the ED on 21.08.2023. 3. The petitioner states in the petition that he “…has a strong apprehension that he will be illegally detained/arrested by the Respondents and he will be made a scapegoat in order to protect the interest of the main promoters/alleged main beneficiaries of the company.

Observation & Judgement of the Court:

Conclusions

For the aforementioned reasons, this court does not deem it necessary to entertain the present writ petition seeking quashing of the impugned ECIR, since the petition is premature.

Once this court has held that an application seeking anticipatory bail is maintainable notwithstanding that the petitioner is not named as an accused in the ECIR or in the prosecution complaint, this court cannot delve into whether the concerned court before whom the application under section 438 Cr.P.C. is filed would, or would not, grant relief to the petitioner. Consequently, in view of the settled legal position, as reiterated by the Supreme Court in Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Ors., 21 the question of granting any interim relief as prayed for by the petitioner does not arise.

This court would hasten to clarify that it is not the purport of the present decision that the High Court, in exercise of its jurisdiction under Article 226 of the Constitution, is per-se barred from entertaining a petition by a person who is not a named accused in a scheduled offence, or in a prosecution compliant arising from an ECIR. It can never be so, since that would derogate from the well settled position of law as enunciated in the celebrated decision of the Supreme Court in L. Chandra Kumar vs. Union of India .

To be sure, any limits on the plenary powers of Constitutional Courts are only self-imposed, and there can be no “… strait-jacket principles that can be said to have “cribbed, cabined and confined” … the extraordinary powers vested under Articles 226 or 227 of the Constitution”.

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