# Manish Sisodia v. Directorate of Enforcement

- **Citation:** 2024 INSC 595
- **Court:** Supreme Court of India
- **Decided:** 2024-08-09
- **Case number:** Criminal Appeal No. 3295 of 2024
- **Bench:** B.R. Gavai, K.V. Viswanathan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manish-sisodia-v-directorate-of-enforcement-38007
- **Pages:** 25

## Headnote

Appellant was incarcerated for around 17 months, trial yet to
commence. Bail denied. Whether the trial court and the High Court
correctly considered the observations made by this Court with
regard to right to speedy trial and prolonged period of incarceration.
The claim of the appellant was rejected applying the triple test
contemplated under Section 45, Prevention of Money Laundering
Act, 2002. Whether the right to bail in cases of delay coupled with
incarceration for a long period should be read into Section 439,
Code of Criminal Procedure, 1973 and Section 45 of the PMLA.
Whether the appellant was deprived of his right to speedy trial and
if entitled to grant of bail.
Headnotes†
Prevention of Money Laundering Act, 2002 - s.45 - Code of
Criminal Procedure, 1973 - s.439 - Delhi's Excise Policy Cases,
irregularities alleged in the framing and implementation -
Cases by CBI and ED, appellant arrested - Previously two
rounds of litigation, present is the third round - Incarceration
for a long period - Delay in trial, bail rejected - Right to
bail - Right to speedy trial - Right to bail in cases of delay
coupled with incarceration for a long period, if should be read
into Section 439 CrPC, 1973 and Section 45 of the PMLA:
Held: Yes - 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 - 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 would
* Author
1062
[2024] 8 S.C.R.
Digital Supreme Court Reports
exercise the power to grant bail - Provisions of Section 45 of
the PMLA would not come in the way of consideration of the
application of the appellant for grant of bail - On account of a
long period of incarceration for around 17 months and the trial
even not having been commenced, the appellant was deprived
of his right to speedy trial - On facts, in view of the first order
of this Court, the appellant was entitled to renew his request -
493 witnesses were named in the ED and the CBI matter -
The case involves thousands of pages of documents and over
a lakh pages of digitized documents - There is not even the
remotest possibility of the trial being concluded in the near future -
Appellant would be deprived of his fundamental right to liberty
under Article 21 if kept behind the bars for an unlimited period of
time in the hope of speedy completion of trial - Impugned judgment
of the High Court quashed and set aside - Appellant granted
bail in both ED and the CBI case on the conditions imposed.
[Paras 37-39, 43, 49, 54, 58]
Criminal Law - Right to fair trial - Right of the accused to
inspect documents including "un-relied upon documents":
Held: Accused has the right to fair trial, cannot be denied the right
to have inspection of the documents including the "un-relied upon
documents". [Para 47]
Bail - To be granted as a rule, jail is exception - Nonobservance by Courts, deprecated:
Held: Bail is not to be withheld as a punishment - Trial courts
and High Courts play safe in matters of grant of bail and the
principle that bail is a rule and refusal is an exception is, at times,
followed in breach - It is high time that the trial courts and the
High Courts should recognize the principle that "bail is rule and
jail is exception". [Para 53]
Special Leave Petitions (SLPs) - Preliminary objection as
regards the maintainability of the second set of SLPs - Delhi's
Excise Policy Cases, irregularities alleged in the framing and
implementation - Cases by CBI and ED, appellant arrested -
Previously two rounds of litigation, present is the third round
before this Court - In earlier rounds of litigation, liberty was
granted to the appellant to move a fresh application for bail
in case of change in circumstances or in case the tr

## Text

_Characters 0–39,863 of 56,745. This is a partial read: ask again with offset=39863 for what follows._

[2024] 8 S.C.R. 1061 : 2024 INSC 595
Manish Sisodia
v.
Directorate of Enforcement
(Criminal Appeal No. 3295 of 2024)
09 August 2024
[B.R. Gavai* and K.V. Viswanathan, JJ.]
Issue for Consideration
Appellant was incarcerated for around 17 months, trial yet to
commence. Bail denied. Whether the trial court and the High Court
correctly considered the observations made by this Court with
regard to right to speedy trial and prolonged period of incarceration.
The claim of the appellant was rejected applying the triple test
contemplated under Section 45, Prevention of Money Laundering
Act, 2002. Whether the right to bail in cases of delay coupled with
incarceration for a long period should be read into Section 439,
Code of Criminal Procedure, 1973 and Section 45 of the PMLA.
Whether the appellant was deprived of his right to speedy trial and
if entitled to grant of bail.
Headnotes†
Prevention of Money Laundering Act, 2002 - s.45 - Code of
Criminal Procedure, 1973 - s.439 - Delhi's Excise Policy Cases,
irregularities alleged in the framing and implementation -
Cases by CBI and ED, appellant arrested - Previously two
rounds of litigation, present is the third round - Incarceration
for a long period - Delay in trial, bail rejected - Right to
bail - Right to speedy trial - Right to bail in cases of delay
coupled with incarceration for a long period, if should be read
into Section 439 CrPC, 1973 and Section 45 of the PMLA:
Held: Yes - 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 - 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 would
* Author
1062
[2024] 8 S.C.R.
Digital Supreme Court Reports
exercise the power to grant bail - Provisions of Section 45 of
the PMLA would not come in the way of consideration of the
application of the appellant for grant of bail - On account of a
long period of incarceration for around 17 months and the trial
even not having been commenced, the appellant was deprived
of his right to speedy trial - On facts, in view of the first order
of this Court, the appellant was entitled to renew his request -
493 witnesses were named in the ED and the CBI matter -
The case involves thousands of pages of documents and over
a lakh pages of digitized documents - There is not even the
remotest possibility of the trial being concluded in the near future -
Appellant would be deprived of his fundamental right to liberty
under Article 21 if kept behind the bars for an unlimited period of
time in the hope of speedy completion of trial - Impugned judgment
of the High Court quashed and set aside - Appellant granted
bail in both ED and the CBI case on the conditions imposed.
[Paras 37-39, 43, 49, 54, 58]
Criminal Law - Right to fair trial - Right of the accused to
inspect documents including "un-relied upon documents":
Held: Accused has the right to fair trial, cannot be denied the right
to have inspection of the documents including the "un-relied upon
documents". [Para 47]
Bail - To be granted as a rule, jail is exception - Nonobservance by Courts, deprecated:
Held: Bail is not to be withheld as a punishment - Trial courts
and High Courts play safe in matters of grant of bail and the
principle that bail is a rule and refusal is an exception is, at times,
followed in breach - It is high time that the trial courts and the
High Courts should recognize the principle that "bail is rule and
jail is exception". [Para 53]
Special Leave Petitions (SLPs) - Preliminary objection as
regards the maintainability of the second set of SLPs - Delhi's
Excise Policy Cases, irregularities alleged in the framing and
implementation - Cases by CBI and ED, appellant arrested -
Previously two rounds of litigation, present is the third round
before this Court - In earlier rounds of litigation, liberty was
granted to the appellant to move a fresh application for bail
in case of change in circumstances or in case the trial was
[2024] 8 S.C.R.
1063
Manish Sisodia v. Directorate of Enforcement
protracted - Preliminary objection was raised as regards
the maintainability of the present appeals on account of the
second order of this Court, contending that the second set
of SLPs cannot be filed to challenge the order of the High
Court when the earlier SLPs arising out of the same order
were disposed of:
Held: Rejected - This Court was concerned about the prolonged
period of incarceration suffered by the appellant - Assurance
was given by the prosecution that the trial shall be concluded
by taking appropriate steps within next 6-8 months however, far
from the trial being concluded within a period of 6-8 months, it is
even yet to commence - Liberty was granted to the appellant to
revive his prayer after filing of the chargesheet - Relegating the
appellant to again approach the trial court and thereafter the High
Court when they have already taken a view would be an empty
formality - Right to speedy trial is a fundamental right within the
broad scope of Article 21 - Liberty reserved by this Court vide its
second order, to revive the request of the appellant was a liberty
given by this Court to revive his prayer afresh after filing of the
final complaint/charge-sheet - Undisputedly, the present appeals
were filed after the final complaint/charge-sheet were filed by the
respondents. [Paras 29, 32, 43]
Case Law Cited
Kunhayammed and Others v. State of Kerala and Others [2000]
Supp. 1 SCR 538 : (2000) 6 SCC 359; P. Ponnusamy v. State
of Tamil Nadu [2022] 15 SCR 265 : (2022) SCC OnLine SC
1543; Vijay Madanlal Choudhary and Others v. Union of India
and Others [2022] 6 SCR 382 : (2022) SCC OnLine SC 929;
Prabir Purkayastha v. State (NCT of Delhi) [2024] 6 SCR 666 :
(2024) SCC OnLine SC 934; Ramkripal Meena v. Directorate of
Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024);
Javed Gulam Nabi Shaikh v. State of Maharashtra and Another
(2024) SCC OnLine SC 1693; Gudikanti Narasimhulu and Others
v. Public Prosecutor, High Court of Andhra Pradesh [1978] 2 SCR
371 : (1978) 1 SCC 240; Shri Gurbaksh Singh Sibbia and Others v.
State of Punjab [1980] 3 SCR 383 : (1980) 2 SCC 565; Hussainara
Khatoon and Others (I) v. Home Secretary, State of Bihar [1979] 3
SCR 169 : (1980) 1 SCC 81; Union of India v. K.A. Najeeb [2021]
1064
[2024] 8 S.C.R.
Digital Supreme Court Reports
1 SCR 443 : (2021) 3 SCC 713; Satender Kumar Antil v. Central
Bureau of Investigation and Another [2022] 10 SCR 351 : (2022)
10 SCC 51 - referred to.
List of Acts
Prevention of Money Laundering Act, 2002; Code of Criminal
Procedure, 1973; Prevention of Corruption Act, 1988; Penal
Code, 1860.
List of Keywords
Section 45 of the Prevention of Money Laundering Act, 2002; Triple
test under Section 45, Prevention of Money Laundering Act, 2002;
Section 439 of the Code of Criminal Procedure, 1973; Article 21 of
the Constitution of India; Delhi's Excise Policy Cases; Incarceration
for a long period; Prolonged period of incarceration; Trial delayed;
Delay in trial; Right to speedy trial; Bail rule, jail exception; Right
to fair trial; Right to Life and Personal Liberty; Second set of
Special Leave Petitions (SLPs); Preliminary objection; Inspection
of documents; Un-relied upon documents.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 3295
of 2024
From the Judgment and Order dated 21.05.2024 of the High Court
of Delhi at New Delhi in BA No. 1557 of 2024
With
Criminal Appeal No. 3296 of 2024
Appearances for Parties
Dr. Abhishek Manu Singhvi, Vikram Chaudhari, Sr. Advs., Vivek Jain,
Mohd. Irshad, Amit Bhandari, Karan Sharma, Rajat Jain, Sadiq Noor,
Mohit Siwach, Shailesh Chauhan, Advs. for the Appellant.
Suryaprakash V. Raju, A.S.G., Mukesh Kumar Maroria, Zoheb
Hussain, Annam Venkatesh, Vivek Gaurav, Hitarth Raja,
Ms. Abhipriya, Ms. Sweta Desai, Vivek Gurnani, Ms. Aakriti Mishra,
Arvind Kumar Sharma, Advs. for the Respondent.
[2024] 8 S.C.R.
1065
Manish Sisodia v. Directorate of Enforcement
Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, J.
1.
Leave granted. Appeals heard on merits.
2.
The present appeals challenge the judgment and order dated 21st
May 2024 passed by the learned Single Judge of the High Court of
Delhi at New Delhi in Bail Application Nos. 1557 and 1559 of 2024,
thereby rejecting the said applications filed by the present appellant
for grant of bail. The aforesaid two applications were filed seeking
bail in connection with ED Case No. HIU-II/14/2022 registered
against the appellant by the Directorate of Enforcement (for short,
'ED') and First Information Report (FIR) No. RC0032022A0053
of 2022 registered against the appellant by the Central Bureau of
Investigation (for short, 'CBI').
3.
FIR No. RC0032022A0053 of 2022 came to be registered by the
CBI on 17th August 2022, and ED Case No. HIU-II/14/2022 came to
be registered by the ED on 22nd August 2022.
4.
Since both the cases arise out of similar facts, the latter being the
predicate offence and the former being a case registered on the
basis of the predicate offence, both these appeals are heard and
decided together.
FACTS IN BRIEF:
5.
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.
6.
On the basis of a letter dated 20th July 2022 addressed by Shri
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 said matter vide Office Memorandum
dated 22nd July 2022. On 26th February 2023, the appellant came to
be arrested by the CBI. Subsequently, the appellant was arrested
by the ED on 9th March 2023.
1066
[2024] 8 S.C.R.
Digital Supreme Court Reports
7.
After investigation, CBI filed charge-sheet on 25th April 2023 for the
offences punishable under Sections 7, 7A, 8 and 12 of the Prevention
of Corruption Act, 1988 (for short, 'PC Act') read with Sections 420,
201 and 120B of the Indian Penal Code, 1860 (for short, 'IPC'). Upon
completion of investigation, the ED filed a complaint under Section 3
of the Prevention of Money Laundering Act, 2002 (for short, 'PMLA')
on 4th May 2023.
8.
The first application for regular bail of the appellant in CBI matter came
to be rejected by the High Court on 30th May 2023. Subsequently, the
first application for regular bail of the appellant in ED matter came
to be rejected by the High Court on 3rd July 2023. This Court, vide
common order dated 30th October 2023 (hereinafter referred to as
"the first order of this Court") rejected the regular bail applications
of the appellant in the CBI matter and the ED matter, with certain
observations which we will refer to in the subsequent paragraphs.
9.
Subsequently, in view of the liberty granted by this Court, the
appellant filed second bail application before the trial court on 27th
January 2024. In the said proceedings, the appellant was granted
interim protection. However, by an order dated 30th April 2024, the
trial court rejected the said bail application on the ground that there
was no change in the circumstances.
10. The appellant thereafter filed second bail application before the
High Court on 2nd May 2024. Vide impugned judgment and order
dated 21st May 2024, the learned Single Judge of the High Court
rejected the said bail application also.
11. Being aggrieved thereby, the appellant had approached this Court by
filing Special Leave Petition (Criminal) Nos. 7795 and 7799 of 2024.
12. The matter was heard on 4th June 2024. This Court, in the said
order (hereinafter referred to as "the second order of this Court")
recorded 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. This Court recorded the submissions made by the
learned Solicitor General and 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
[2024] 8 S.C.R.
1067
Manish Sisodia v. Directorate of Enforcement
petition with liberty to revive his prayer afresh after filing of the final
complaint/charge-sheet.
13. Accordingly, after filing of the final complaint/charge-sheet, the
appellant has approached this Court by way of the present appeals.
This Court, vide order dated 16th July 2024 had issued notice. In
response thereto, counter affidavit has been filed on behalf of the
ED as well as the CBI opposing the present appeals.
SUBMISSIONS:
14. We have extensively heard Dr. Abhishek Manu Singhvi, learned Senior
Counsel appearing on behalf of the appellant and Shri Suryaprakash
V. Raju, learned Additional Solicitor General (ASG) appearing on
behalf of the respondents.
15. A preliminary objection has been raised on behalf of the learned
ASG that the appellant cannot be permitted to file second set of
SLPs to challenge the order of the High Court dated 21st May 2024
when the earlier SLPs arising out of the same order were disposed
of. He submitted that the liberty granted by this Court vide order
dated 4th June 2024 has to be construed as a liberty to apply to
the trial court afresh. It is submitted that, only after the appellant
approaches the trial court and in the event he does not succeed
before the trial court, thereafter he approaches the High Court
and in the event he also does not succeed before the High Court,
then only he would be entitled to approach this Court. He therefore
submitted that the present appeals deserve to be rejected thereby
relegating the appellant to approach the trial court afresh. To buttress
his submission, Shri Raju relied on the judgment of this Court in
the case of Kunhayammed and Others v. State of Kerala and
Others.1
16. The said preliminary objection has been opposed by Dr. Singhvi,
learned Senior Counsel appearing on behalf of the appellant
contending that this Court had specifically, vide its first order dated
30th October 2023, granted liberty to the appellant to move a fresh
application for bail in case the trial does not conclude within next
6-8 months and also in case the trial is protracted and proceeds at
1
[2000] Supp. 1 SCR 538 : (2000) 6 SCC 359 : 2000 INSC 339
1068
[2024] 8 S.C.R.
Digital Supreme Court Reports
a snail's pace in next three months. He submitted that, admittedly,
the trial has not been concluded within a period of 6-8 months from
the date of the first order of this Court. He further submitted that the
record would show that the trial was protracted and proceeded at
a snail's pace in the period of three months after the first order of
this Court was passed. He submitted that the second order of this
Court clearly reserves the right of the appellant to revive the request
afresh after filing of the final complaint/charge-sheet as assured by
the learned Solicitor General. Dr. Singhvi therefore prays for rejection
of the preliminary objection.
17. On merits, Dr. Singhvi submitted that this Court, vide its first order
dated 30th October 2023, has given various findings in favour of the
appellant. It is submitted that, a perusal of the same would clearly
reveal that at number of places, this Court has given findings which
would show that the respondents have not been in a position to
make out a prima facie case. Dr. Singhvi further submitted that a
perusal of the record would reveal that even the investigation in
the case is not complete. He therefore submitted that unless the
investigation is complete, the trial cannot proceed. He submitted
that three more supplementary complaints have been filed on
10th May 2024, 17th May 2024 and 20th June 2024 in the ED matter
and as on 27th July 2024, there were 40 persons who have been
arrayed as accused in the proceedings with more than 8 complaints.
He further submitted that, in the ED matter, the ED has cited 224
witnesses and produced 32,000 pages of documents. He further
submitted that, in the CBI matter, the CBI has cited 269 witnesses
and produced around 37,000 pages of documents. It is therefore
submitted that in all there are 493 witnesses, excluding the ones in
the 4th Supplementary Charge-sheet filed by the CBI, who will have
to be examined and that in total the documents are running into
around 69,000 pages.
18. Dr. Singhvi submitted that the ED has deliberately concealed the
documents it acquired during investigation by putting documents
exculpating the accused persons in the category of "un-relied upon
documents". It is submitted that, as such, it was necessary for the
appellant to inspect such "un-relied upon documents". He further
submitted that there was an inordinate delay on the part of the ED
and the CBI in producing the list of "un-relied upon documents".
[2024] 8 S.C.R.
1069
Manish Sisodia v. Directorate of Enforcement
19. Dr. Singhvi submitted that, taking into consideration the voluminous
number of witnesses and documents, there is no possibility of the
trial seeing the light of the day and therefore the appeals filed by
the appellant deserve to be allowed.
20. Shri Raju vehemently opposed the present appeals. He submitted
that this Court, in its first order, after enumerating various factors
on merits of the matter in paragraph 25 has held that the Court
was not inclined to accept the prayer for grant of bail. It is therefore
submitted that the appeals of the present appellant on merits were
specifically rejected.
21. Shri Raju further submitted that, though the Court granted liberty to file
a fresh application in the circumstances enumerated in paragraph 29,
it was held that the same would be considered by the trial court on
merits without being influenced by the dismissal of the earlier bail
applications including the said first order. It is therefore submitted
that the trial court as well as the High Court were required to take
into consideration the merits of the matter. However, the present
appellant opposed the consideration of the application on merits
and insisted on consideration of the application only on the ground
of delay in trial. It is therefore submitted that both the courts have
rightly considered the merits of the matter and after considering the
merits, found that the appellant was not entitled to grant of bail. He
submitted that no interference would be warranted.
22. Shri Raju submitted that the trial court and the High Court have
specifically come to a finding that the appellant has delayed the
pre-charge proceedings by taking recourse to the provisions of
Section 207 of Criminal Procedure Code, 1973 (for short, 'Cr.P.C.').
He submitted that more than hundred applications have been filed out
of which many are under Section 207 Cr.P.C. These applications have
been filed only for the purpose of delaying the trial. It is submitted
that though in view of the law laid down by this Court in the case of
P. Ponnusamy v. State of Tamil Nadu,2 such applications could have
been filed only after framing of the charges, the same have been
intentionally filed at a pre-charge stage of the trial, so as to delay
the framing of the charges. He submitted that though the appellant
2
[2022] 15 SCR 265 : 2022 SCC OnLine SC 1543 : 2022 INSC 1175
1070
[2024] 8 S.C.R.
Digital Supreme Court Reports
is entitled to file an application for discharge, the same has not been
filed only in order to protract the trial. He submitted that the totality
of the circumstances would reveal that it is the appellant who has
been protracting the trial. It is submitted that as the appellant himself
is responsible for protracting the trial, he cannot be permitted to take
the benefit of the same.
23. The learned ASG submitted that unless the triple conditions as
stipulated under Section 45 of the PMLA are satisfied, no person
accused of an offence shall be released on bail. It is submitted that,
in the present case, this Court itself by the first order has found that
the appellant was not entitled for bail on merits and as such, the
second condition stipulated under Section 45 of the PMLA that there
are reasonable grounds for believing that he is not guilty of such
offence, would not be satisfied in the present case.
24. The learned ASG further submitted that the appellant is a very
influential person having occupied the office of Deputy Chief
Minister of Delhi when the crime was committed. He submitted that
if the appellant is released on bail, there is every possibility of him
influencing the witnesses or tampering with the evidence.
25. Dr. Singhvi, in rejoinder, has submitted that the contention that the trial
is being delayed due to the applications being filed by the appellant
under Section 207 Cr.P.C. is totally incorrect. He submitted that the
said applications were required to be filed since the prosecution had
not placed on record the documents exculpating the accused persons
by placing the same in the category of "un-relied upon documents".
He submitted that in order to avail the right of a fair trial and in
adherence to the principles of natural justice as encapsulated in
Section 207 Cr.P.C., the appellant was forced to file such applications.
However, each of these applications were vehemently opposed by
the prosecution. It is submitted that the said material ought to have
been placed on record by the prosecution themselves, however, for
the reasons best known to the prosecution, they have not done so.
He submitted that the appellant has filed only 14 applications in ED
case and 13 applications in CBI case and that all these applications
have been allowed by the learned trial judge. He lastly submitted that
even as per the prosecution, if the entire "un-relied upon documents"
are to be supplied in digital form, it will take a long time. To support
his submission, Dr. Singhvi places reliance on the compliance report
[2024] 8 S.C.R.
1071
Manish Sisodia v. Directorate of Enforcement
dated 7th May 2024 filed by the Assistant Director of ED which would
fortify this position.
CONSIDERATION OF PRELIMINARY OBJECTION:
26. We will first deal with the preliminary objection of the learned ASG
with regard to the filing of the second set of appeals before this
Court challenging the order of the High Court dated 21st May 2024
i.e., on the point of maintainability.
27. Undisputedly, the appellant had earlier challenged the same order
dated 21st May 2024 vide SLP (Criminal) Nos. 7795 and 7799 of
2024. On doing so, a Division Bench of this Court passed the order
dated 4th June 2024. It will be apposite to refer to the observations
made by this Court in the said order, which read thus:
"Though, elaborate arguments have been made, we do
not propose to go into the said arguments or dwell upon
it and then record our reasons for the simple reason that
Co-ordinate Bench while dismissing the appeals vide order
dated 30.10.2023, as noticed hereinabove has granted
liberty to the appellant, i.e., the petitioner herein to move
a fresh application for bail by placing reliance on the
assurance given on behalf of the prosecution that they
would conclude the trial by taking appropriate steps within
next 6-8 months and as such the liberty was extended to
the petitioner herein to move a fresh application in case of
change in circumstances, or in case the trial is protracted
and proceeds at a snail's pace in next three months. It
was also observed that if such an application is filed in the
aforesaid circumstances, the same would be considered
by the trial court on merits without being influenced by
the dismissal of the earlier bail application including the
judgment of this Court.
Shri Tushar Mehta, learned Solicitor General on instructions
would submit that the investigation would be concluded and
final complaint/charge sheet would be filed expeditiously
and at any rate on or before 03.07.2024 and immediately
thereafter, the trial court will be free to proceed with trial.
In the light of the said submissions made and having
regard to the fact that the period of "6-8 months" fixed by
1072
[2024] 8 S.C.R.
Digital Supreme Court Reports
this Court by Order dated 30.10.2023 having not come to
an end, it would suffice to dispose of these petitions with
liberty to the petitioner to revive his prayer afresh after
filing of the final complaint/Charge-sheet as assured by
learned Solicitor General. Needless to state that in the
event of such an application being filed, the same would
be considered on its own merits as already observed by
this Court vide paragraph 29 (supra). Contentions of both
parties kept open.
Accordingly, these petitions stand disposed of. All pending
applications consigned to record."
28. Before considering the submissions of the learned ASG with regard
to maintainability of the present appeals on account of the second
order of this Court, it will be apposite to refer to certain observations
made by this Court in its first order, which read thus:
"26. However, we are also concerned about the prolonged
period of incarceration suffered by the appellant -
Manish Sisodia. In P. Chidambaram v. Directorate
of Enforcement (2020) 13 SCC 791, the appellant
therein was granted bail after being kept in custody for
around 49 days [P. Chidambaram v. Central Bureau
of Investigation (2020) 13 SCC 337], relying on the
Constitution Bench in Shri Gurbaksh Singh Sibbia
and Others v. State of Punjab (1980) 2 SCC 565, and
Sanjay Chandra v. Central Bureau of Investigation
(2012) 1 SCC 40, that even if the allegation is one of
grave economic offence, it is not a rule that bail should
be denied in every case. Ultimately, the consideration
has to be made on a case to case basis, on the facts.
The primary object is to secure the presence of the
accused to stand trial. The argument that the appellant
therein was a flight risk or that there was a possibility of
tampering with the evidence or influencing the witnesses,
was rejected by the Court. Again, in Satender Kumar
Antil v. Central Bureau of Investigation and Another
(2022) 10 SCC 51, this Court referred to Surinder Singh
Alias Shingara Singh v. State of Punjab (2005) 7
SCC 387 and Kashmira Singh v. State of Punjab
[2024] 8 S.C.R.
1073
Manish Sisodia v. Directorate of Enforcement
(1977) 4 SCC 291, to emphasise that the right to speedy
trial is a fundamental right within the broad scope
of Article 21 of the Constitution. In Vijay Madanlal
Choudhary (supra), this Court while highlighting the
evil of economic offences like money laundering, and its
adverse impact on the society and citizens, observed that
arrest infringes the fundamental right to life. This Court
referred to Section 19 of the PML Act, for the in-built
safeguards to be adhered to by the authorised officers to
ensure fairness, objectivity and accountability. [See also
Pankaj Bansal v. Union of India and Ors. 2023 SCC
OnLine SC 1244] Vijay Madanlal Choudhary (supra),
also held that Section 436A of the Code can apply to
offences under the PML Act, as it effectuates the right to
speedy trial, a facet of the right to life, except for a valid
ground such as where the trial is delayed at the instance
of the accused himself. In our opinion, Section 436A
should not be construed as a mandate that an accused
should not be granted bail under the PML Act till he has
suffered incarceration for the specified period. This Court,
in Arnab Manoranjan Goswami v. State of Maharashtra
and Others (2021) 2 SCC 427, held that while ensuring
proper enforcement of criminal law on one hand, the court
must be conscious that liberty across human eras is as
tenacious as tenacious can be.
27. The appellant - Manish Sisodia has argued that given
the number of witnesses, 294 in the prosecution filed by the
CBI and 162 in the prosecution filed by the DoE, and the
documents 31,000 pages and 25,000 pages respectively,
the fact that the CBI has filed multiple charge sheets, the
arguments of charge have not commenced. The trial court
has allowed application of the accused for furnishing of
additional documents, which order has been challenged
by the prosecution under Section 482 of the Code before
the High Court. It was stated at the Bar, on behalf of
the prosecution that the said petition under Section 482
will be withdrawn. It was also stated at the Bar, by the
prosecution that the trial would be concluded within next
six to eight months.
1074
[2024] 8 S.C.R.
Digital Supreme Court Reports
28. 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.
29. In view of the assurance given at the Bar on behalf of
the prosecution that they shall conclude the trial by taking
appropriate steps within next six to eight months, we give
liberty to the appellant - Manish Sisodia to move a fresh
application for bail in case of change in circumstances, or
in case the trial is protracted and proceeds at a snail's pace
in next three months. If any application for bail is filed in
the above circumstances, the same would be considered
by the trial court on merits without being influenced by
the dismissal of the earlier bail application, including the
present judgment. Observations made above, re.: right to
speedy trial, will, however, be taken into consideration. The
appellant - Manish Sisodia may also file an application for
interim bail in case of ill health and medical emergency
due to illness of his wife. Such application would be also
examined on its own merits."
[2024] 8 S.C.R.
1075
Manish Sisodia v. Directorate of Enforcement
29. A perusal of the aforesaid would reveal that this Court was concerned
about the prolonged period of incarceration suffered by the appellant.
After considering various earlier pronouncements, this Court
emphasised that the right to speedy trial is a fundamental right within
the broad scope of Article 21 of the Constitution. Relying on Vijay
Madanlal Choudhary and Others v. Union of India and Others,3
this Court observed 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. This
Court recorded the assurance given by the prosecution that they
shall conclude the trial by taking appropriate steps within next 6-8
months. This Court, after recording the said submissions, granted
liberty to the appellant to move a fresh application for bail in case
of change in circumstances or in case the trial was protracted and
proceeded at a snail's pace in next three months. This Court observed
that if any application was filed, the same would be considered by
the trial court on merits without being influenced by the dismissal
of the earlier bail applications including its own judgment. It further
observed that the observations made regarding the right to speedy
trial will be taken into consideration.
30. Since the trial proceeded at a snail's pace in the period after three
months of the first order of this Court, the appellant filed the second
application for bail before the trial court. The same came to be rejected
by the trial court on 30th April 2024. It can thus be seen that it took
a period of almost three months for the trial court to decide the said
application. By the time the appellant approached the High Court, a
period of more than six months had elapsed from the date on which
the first order of this Court was passed. The same also came to be
rejected on 21st May 2024.
31. 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
3
[2022] 6 SCR 382 : (2022) SCC OnLine SC 929 : 2022 INSC 756
1076
[2024] 8 S.C.R.
Digital Supreme Court Reports
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.
32. It could thus be seen that this Court had granted liberty to the appellant
to revive his prayer after filing of the charge-sheet. 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.
33. A careful reading of the second order of this Court dated 4th June
2024 would show that this Court recorded that they did not propose
to go into the arguments or dwell upon it in view of the liberty granted
in the first order of this Court. Thereafter, this Court noticed the
assurance of the learned Solicitor General that the investigation
would be concluded and final complaint/charge-sheet would be filed
at any rate on or before 3rd July 2024. This Court further observed
in its second order that since the period of 6-8 months fixed by it in
its first order had not come to an end, it was inclined to dispose of
this petition with liberty to the appellant to revive his prayer. It will
be a travesty of justice to construe that the carefully couched order
preserving the right of the appellant to revive his prayer for grant of
special leave against the High Court order, to mean that he should
be relegated all the way down to the trial court. The memorable
adage, that procedure is a hand maiden and not a mistress of justice
rings loudly in our ears.
34. In this respect, we may also gainfully refer to one of the recent
pronouncements by a bench of this Court to which one of us
(B.R. Gavai, J.) was a member in the case of Prabir Purkayastha
v. State (NCT of Delhi),4 which reads thus:
4
[2024] 6 SCR 666 : 2024 SCC OnLine SC 934 : 2024 INSC 414
[2024] 8 S.C.R.
1077
Manish Sisodia v. Directorate of Enforcement
"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.""
35. 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.
CONSIDERATION AS TO WHETHER THE APPELLANT IS
ENTITLED FOR BAIL:
36. Having rejected the preliminary objection, we will proceed to consider
as to whether in the facts and circumstances of the present case,
the appellant is entitled to grant of bail or not.
37. Insofar as the contention of the learned ASG that since the conditions
as provided under Section 45 of the PMLA are not satisfied, the
appellant is not entitled to grant of bail is concerned, it will be apposite
to refer to the first order of this Court. No doubt that this Court in
its first order in paragraph 25, after recapitulating in paragraph 24
as to what was stated in the charge-sheet filed by the CBI against
the appellant, observed that, in view of the aforesaid discussion, the
Court was not inclined to accept the prayer for grant of bail at that
stage. However, certain paragraphs of the said order cannot be read
in isolation from the other paragraphs. The order will have to be read
in its entirety. In paragraph 28 of the said order, this Court observed
that the right to bail in cases of delay, coupled with incarceration for
1078
[2024] 8 S.C.R.
Digital Supreme Court Reports
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.
38. A Division Bench of this Court in the case of Ramkripal Meena v.
Directorate of Enforcement 5 was considering an application of the
petitioner therein who was to receive a bribe of rupees five crore and
from whom, an amount of Rs.46,00,000/- was already recovered.
In the said case, the petitioner was arrested on 26th January 2022
in connection with FIR No.