A Mumbai court on Thursday granted bail to Yes Bank founder Rana Kapoor in a money laundering case in which he was arrested in March 2020..The special court under the Prevention of Money Laundering Act (PMLA) granted relief to Kapoor under Section 436A of the Criminal Procedure Code.Section 436A provides the maximum period for which an undertrial prisoner can be detained.The proviso to the Section points out that no such person shall be detained for more than half the maximum period of imprisonment provided for the offence in law.Special judge MG Deshpande observed in the December 21 order that Kapoor had been detained for three years and nine months. This is more than half of the maximum imprisonment (seven years) that can be awarded to Kapoor for his alleged offence.The Court took exception to the prolonged incarceration of the accused and pulled up the ED for opposing the bail application despite not having started the trial for more than three years since Kapoor's incarceration. “In case, in future, accused is acquitted what about his undue incarceration amounting minimum sentence which he has undergone for no reasons? This is really a serious question. Prolonged undue incarceration of 3 years 9 months of applicant (A1) without trial and without even beginning the initial stage of framing charge and also without prompt step by the ED as mandated under Sec.44(1)(c) of the PML Act itself melt down the rigors of twin conditions under Sec.45(1) of the PML Act. Therefore, contention of ED to reject the bail application is nothing but giving implied grant to them to continue their further investigation until the period of 7 years and also more than that," the Court said..In light of this, the judge ruled that Kapoor ought to be released on bail.“Kapoor, a senior citizen and aged 66 years and has already remained in custody for 3 years and 9 months for an offence which provides maximum punishment which may extend to 7 years. Therefore, at the moment, Kapoor has already suffered the minimum sentence of 3 years and 9 months prescribed under Sec.4 of the PML Act, without trial," the court observed..The court also took note that he has already undergone the minimum sentence applicable to his alleged offence without undergoing a trial “While suffering such undue incarceration, Kapoor has already undergone the minimum sentence without trial. As on today he is deemed to have been convicted with more than the period of minimum punishment, that too without framing charge and without trial," the judge recorded in the 83-page order..Kapoor was arrested on March 8, 2020, by the Enforcement Directorate (ED) which alleged that Kapoor had misused his position as Managing Director (MD) and Chief Executive Officer (CEO) of Yes Bank to gain undue benefits to the tune of ₹600 crores through a company linked to his family. This was in return for loans that Yes Bank allegedly gave to the infrastructure company, Dewan Housing Finance Limited (DHFL)..The ED had opposed Kapoor’s bail application arguing that the commencement of trial had been delayed because of multiple applications filed in the case. .The Court, however, noted that from the record of daily proceedings in the case that Kapoor had never initiated any proceeding to protract the trial.The Court further opined that the pendency of Kapoor’s bail applications did not impede the ED from completing its investigation and informing the Court that it could proceed to framing the charges in the case.“ED may investigate endlessly, but the same confers right on accused to apply under Sec.436A. In other words, it can be said that further investigation, if causes delay in trial, that itself gives cause of action to any accused who has been unduly incarcerated without trial, for agitating his right under Sec.436A which has roots in Art.21 of the Constitution of India," the court said..The Court also noted that the ED had proposed 43 persons as accused persons and wanted to examine 70 prosecution witnesses in the case.The Court added that there was voluminous evidence filed in the money laundering case as well as the predicate offence being investigated by the Central Bureau of Investigation (CBI).In the passing, the court further observed that since the inception of the PMLA in 2002, courts across India had disposed of 25 cases out of the 1,142 filed cases, which indicated a ratio of only one disposed case per year.“Even if the present case is kept every day, there is no likelihood of its disposal at least in the coming 2 years”, the court went on to note..The Court finally raised a query as to what would happen if Kapoor was ultimately found to be not guilty at the end of the trial, after having undergone so many years in jail..Therefore, the Court allowed Kapoor's bail application. However, Kapoor will continue to remain in judicial custody in connection with his arrest by the CBI in the predicate offence. in which case he has not been granted bail..Senior advocate Aabad Ponda with advocates Rahul Agarwal, Siya Chaudhary, Jasmin Purani and Sajid Sayed instructed by Agarwal and Dhanuka Legal appeared for Kapoor.Special Public Prosecutor Sunil Gonsalves appeared for the ED..This is not the first time that judge MG Deshpande has pulled up the ED for delays noticed in the conduct of money laundering cases probed by the agency. In November 2022, while granting bail to Shiv Sena (UBT) leader Sanjay Raut, the judge noted that while the ED makes arrests at an extraordinary pace in money laundering cases, it conducts trials at a snail's pace. In the same case, the judge had also remarked that the ED appeared to have a pick-and-choose strategy when arresting people.Earlier, while granting bail to two other persons in a PMLA case, the same judge observed that a court cannot join hands with ED to humiliate accused persons by continuing their judicial custody. Giving in to the whimsical demand of the ED to automatically extend the judicial custody of accused persons would amount to a violation of the liberty of the accused under Article 21 of the Constitution, judge Deshpande added. .[Read order]
A Mumbai court on Thursday granted bail to Yes Bank founder Rana Kapoor in a money laundering case in which he was arrested in March 2020..The special court under the Prevention of Money Laundering Act (PMLA) granted relief to Kapoor under Section 436A of the Criminal Procedure Code.Section 436A provides the maximum period for which an undertrial prisoner can be detained.The proviso to the Section points out that no such person shall be detained for more than half the maximum period of imprisonment provided for the offence in law.Special judge MG Deshpande observed in the December 21 order that Kapoor had been detained for three years and nine months. This is more than half of the maximum imprisonment (seven years) that can be awarded to Kapoor for his alleged offence.The Court took exception to the prolonged incarceration of the accused and pulled up the ED for opposing the bail application despite not having started the trial for more than three years since Kapoor's incarceration. “In case, in future, accused is acquitted what about his undue incarceration amounting minimum sentence which he has undergone for no reasons? This is really a serious question. Prolonged undue incarceration of 3 years 9 months of applicant (A1) without trial and without even beginning the initial stage of framing charge and also without prompt step by the ED as mandated under Sec.44(1)(c) of the PML Act itself melt down the rigors of twin conditions under Sec.45(1) of the PML Act. Therefore, contention of ED to reject the bail application is nothing but giving implied grant to them to continue their further investigation until the period of 7 years and also more than that," the Court said..In light of this, the judge ruled that Kapoor ought to be released on bail.“Kapoor, a senior citizen and aged 66 years and has already remained in custody for 3 years and 9 months for an offence which provides maximum punishment which may extend to 7 years. Therefore, at the moment, Kapoor has already suffered the minimum sentence of 3 years and 9 months prescribed under Sec.4 of the PML Act, without trial," the court observed..The court also took note that he has already undergone the minimum sentence applicable to his alleged offence without undergoing a trial “While suffering such undue incarceration, Kapoor has already undergone the minimum sentence without trial. As on today he is deemed to have been convicted with more than the period of minimum punishment, that too without framing charge and without trial," the judge recorded in the 83-page order..Kapoor was arrested on March 8, 2020, by the Enforcement Directorate (ED) which alleged that Kapoor had misused his position as Managing Director (MD) and Chief Executive Officer (CEO) of Yes Bank to gain undue benefits to the tune of ₹600 crores through a company linked to his family. This was in return for loans that Yes Bank allegedly gave to the infrastructure company, Dewan Housing Finance Limited (DHFL)..The ED had opposed Kapoor’s bail application arguing that the commencement of trial had been delayed because of multiple applications filed in the case. .The Court, however, noted that from the record of daily proceedings in the case that Kapoor had never initiated any proceeding to protract the trial.The Court further opined that the pendency of Kapoor’s bail applications did not impede the ED from completing its investigation and informing the Court that it could proceed to framing the charges in the case.“ED may investigate endlessly, but the same confers right on accused to apply under Sec.436A. In other words, it can be said that further investigation, if causes delay in trial, that itself gives cause of action to any accused who has been unduly incarcerated without trial, for agitating his right under Sec.436A which has roots in Art.21 of the Constitution of India," the court said..The Court also noted that the ED had proposed 43 persons as accused persons and wanted to examine 70 prosecution witnesses in the case.The Court added that there was voluminous evidence filed in the money laundering case as well as the predicate offence being investigated by the Central Bureau of Investigation (CBI).In the passing, the court further observed that since the inception of the PMLA in 2002, courts across India had disposed of 25 cases out of the 1,142 filed cases, which indicated a ratio of only one disposed case per year.“Even if the present case is kept every day, there is no likelihood of its disposal at least in the coming 2 years”, the court went on to note..The Court finally raised a query as to what would happen if Kapoor was ultimately found to be not guilty at the end of the trial, after having undergone so many years in jail..Therefore, the Court allowed Kapoor's bail application. However, Kapoor will continue to remain in judicial custody in connection with his arrest by the CBI in the predicate offence. in which case he has not been granted bail..Senior advocate Aabad Ponda with advocates Rahul Agarwal, Siya Chaudhary, Jasmin Purani and Sajid Sayed instructed by Agarwal and Dhanuka Legal appeared for Kapoor.Special Public Prosecutor Sunil Gonsalves appeared for the ED..This is not the first time that judge MG Deshpande has pulled up the ED for delays noticed in the conduct of money laundering cases probed by the agency. In November 2022, while granting bail to Shiv Sena (UBT) leader Sanjay Raut, the judge noted that while the ED makes arrests at an extraordinary pace in money laundering cases, it conducts trials at a snail's pace. In the same case, the judge had also remarked that the ED appeared to have a pick-and-choose strategy when arresting people.Earlier, while granting bail to two other persons in a PMLA case, the same judge observed that a court cannot join hands with ED to humiliate accused persons by continuing their judicial custody. Giving in to the whimsical demand of the ED to automatically extend the judicial custody of accused persons would amount to a violation of the liberty of the accused under Article 21 of the Constitution, judge Deshpande added. .[Read order]
