Prabhat Kumar Singh, J.

1. Heard Sri S.D.Sanjay, learned senior counsel assisted by Smt. Priya Gupta, learned counsel for the petitioner and Sri K.N.Singh, learned Additional Solicitor General, assisted by Sri Manoj Kumar Singh, learned counsel for opposite party/ Directorate of Enforcement.

2. The petitioner has preferred this application for grant of anticipatory bail in connection with Special Trial No. (PMLA) No. 05 of 2021, arising out of ECIR No. PTZO/04/ 2018 dated 24.05.2018, for offence alleged under section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'P.M.L.Act').

3. It is alleged that the office bearers of Srijan Mahila Vikas Sahyog Samiti Ltd. (hereinafter referred to as "S.M.V.S.S.L.") Sabour, Bhagalpur, in conspiracy with the officers/office bearers of Indian Bank, Patal Babu Road, Bhagalpur, Bank of Baroda, Dr. R.P. Road, Ghanta Ghar, Bhagalpur, Bank of Baroda, Saharsa and State Government officials and others illegally transferred and misused the public funds from State Govt. accounts in fraudulent manner for personal gain. It is further alleged that the petitioner and other co-accused persons have acquired proceeds of crime by commission of offence punishable under Sections 420, 47, 471, 120B of the Indian Penal Code and Section 13 of Prevention of Corruption Act, 1988 for the charges of corruption, criminal conspiracy, cheating and forgery related to Schedule Offences as defined under P.M.L.Act and by investing the said proceeds of crime in various movable and immovable properties, in an attempt to project it as untainted, all have committed offence under Section 3 of the P.M.L.Act, which is punishable under Section 4 of the P.M.L.Act. Thus, the complaint under Section 44 & 45 of the P.M.L.Act has been filed against 22 accused persons including the petitioner Satish Kumar Jha. It is further specifically alleged that the petitioner was one of the close associates of Late Manorama Devi, the then Secretary of SMVSSL and he was knowingly involved in processes/activities connected with proceeds of crime like concealment, possession, acquisition, use and transfer of proceeds of crime and projection of the same as untainted. Several FIRs/Chargesheet have been filed in the case of M/s Srijan Mahila Vikas Sahyog Samiti Ltd. & Others including the petitioner for offences which are scheduled under the P.M.L.Act and through commission of these offences petitioner has generated huge proceeds of crime. It is further alleged that the petitioner retired as Sub Divisional Audit officer, Audit Department of Cooperative Societies, Bhagalpur, Bihar and he deliberately failed to do proper audit of account of SMVSSL and one of the close associates of Late Manorama Devi and in lieu of help provided by the petitioner, he had been offered flats in Gardenia, which was funded from the account of SMVSSL and Manorama Devi. The petitioner has acquired a flat, bearing no. Emerald I/505, Gardenia Glamour Phase II Project for Rs. 25 lacs in the name of his daughter Meenakshi Jha, w/o Suman Kumar Jha and during investigation it was observed that Meenakshi Jha was maintaining a Bank account bearing No. 916407880 jointly with her husband Shri Suman Kumar Jha in Indian Bank, Bhagalpur. It is also alleged that illegal money was deposited in the Bank account of Minakshi Jha and it was further used to acquisition of immovable property i.e. Flat No. Emerald I/505, Gardenia Glamour Phase II, Ghaziabad. Petitioner has acquired another Flat bearing no. Emerald-I/605, Gardenia Glamour Phase-II project which was booked for Rs. 25 lacs in the name of Himanshu Shekhar Jha S/o Satish Kumar Jha. It is also alleged that Himanshu Shekhar Jha was maintaining a Bank A/c No. 996609382 and his brother Shubhranshu Shekhar Jha was maintaining a Bank A/c No. 916409504 in Indian Bank, Bhagalpur. These accounts were managed by their father i.e. the petitioner Satish Kumar Jha to launder proceeds of crime. Huge cash deposits have been revealed in the above accounts. Further, amount was directly transferred from the accounts of SMVSSL to the above accounts.

4. On the basis of the aforesaid complaint petition, Special Trial No. (PMLA) 05 of 2021 arising out of ECIR No. PTZO/04/2018 dated 24.05.2018 has been registered for the offence under Section 3 / 4 of the P.M.L.Act, 2002 and thereafter, cognizance has also been taken against petitioner and other co-accused persons for the offences under Section 4 of the P.M.L.Act, 2002 by the Court of learned Sessions Judge/ Special Judge, (PMLA), Patna, vide order dated 04.10.2021.

5. It is submitted by learned senior counsel appearing on behalf of petitioner that the allegation levelled against the petitioner is false and baseless. Petitioner has been falsely implicated in this case. Petitioner was posted as Sub Divisional Audit Officer, Cooperative Society, Bhagalpur since June, 1999 and he retired from the said post on 31.03.2016 and in the entire service period, petitioner was blameless and was not found indulged in any kind of discrepancy or fraudulent act, as a government servant. Petitioner never received any unaccounted money or illegal amount in his bank account during his service period nor after his retirement. Being Sub-Divisional Audit Officer, the petitioner had played no role in any manner to get funds transferred in the name of SMVSSL nor he has filled up any cheque in the bank on behalf of SMVSSL. During investigation, nothing has come against this petitioner to show his involvement in defrauding the State Exchequer in connivance with bank officials, SMVSSL and the officials of District Administration, Bhagalpur. Petitioner was not the beneficiary from the alleged transactions in any manner. It is further submitted that so far as purchase of flats at Gardenia Glamour Project, Ghaziabad in the name of son and daughter of petitioner is concerned, same were purchased by his sons and daughter by their own earnings and savings, not by the SMVSSL, as they are self-dependent and working. It is next submitted that in this case, chargesheet has already been submitted by the investigating agency and thereafter, summons were issued upon the petitioner and others to face trial and under Section 50 of the P.M.L.Act,2002, the statement of son of the petitioner namely Himanshu Shekhar Jha has already been recorded. Till date, investigation has been completed and the petitioner has not been arrested during investigation, however; he was present before C.B.I. during investigation and fully cooperated with the investigating agency. It is lastly contended by learned senior counsel that Hon'ble Apex Court has held that in case, an accused has not been arrested during investigation then after submission of chargesheet, there is no requirement of custodial interrogation, rather his presence is required by the court of the trial. In support of above submission, learned Senior Counsel has relied upon a recent judgment of Hon'ble Supreme Court dated 20.03.2023 in the case of Mahdoom Bava vs. Central Bureau of Investigation {Arising out of SLP (Crl.) No. 376 of 2023}. On aforesaid ground, it has been prayed to extend the privilege of anticipatory bail to the petitioner.

6. Learned counsel appearing on behalf of opposite party vehemently opposes the prayer for anticipatory bail of petitioner and submits that during course of investigation, it was revealed that huge funds have been siphoned off from the government treasure after being illegally transferred to the bank accounts of SMVSSL with the help of government officials, Bank officials, office bearers of SMVSSL and other individuals. The money so transferred into the bank accounts of SMVSSL was further transferred though RTGS/Cash/Cheques to various persons. Petitioner, being posted as Sub Divisional Audit Officer, Bhagalpur, was involved in conspiracy of Srijan Scam and he deliberately failed to properly audit the account of SMVSSL and was one of the close associates of Late Manorama Devi. In lieu of assistance provided by this petitioner, he was offered flats in Gardenia Project, which were funded from the account of SMVSSL and Manorma Devi. Apart from the above, he played a crucial role in the Srijan Scam, which led to misappropriation of huge government money. The petitioner has acquired a flat, bearing No. Emerald 1/505, Gardenia Glamour Phase II Project for Rs. 25,00,000/-in the name of his daughter Meenakshi Jha w/o Suman Kumar Jha. During investigation, it revealed that Meenakshi Jha is maintaining a bank account with her husband in Indian Bank, Bhagalpur, which was managed by the petitioner to launder proceeds of crime. Illegal money was deposited in the said bank account and it was further used for acquisition of immovable property i.e. flat no. Emerald I/505, Gardenia Glamour, Ghaziabad. Thereafter, Flat no. I/605, Gardenia Glamour Phase II Project was booked for Rs. 25,00,000/-in the name of Himanshu Shekhar Jha (son of petitioner). The details of the properties held in the name of Meenakshi Jha and Himanshu Shekhar Jha are as follows in tabular form:

7. It is further submitted that apart from the above, two bank accounts in Indian Bank, Bhagalpur of both sons of petitioner were managed by petitioner himself to launder proceeds of crime. Further, an amount of Rs. 20,60,000/-was directly transferred from the account of SMVSSL to the accounts of his two sons and daughter. Lastly, it is submitted that it is a well thought plan of money laundering by the accused/petitioner by opening an account in the name of family members, which were further utilized for cash deposits and receiving of fund from SMVSSL and as such, petitioner has committed an offence of money laundering, as defined in Section 3 of the P.M.L.Act, 2002 and he is liable to be punished in terms of Section 4 of the P.M.L.Act, 2002.

8. Having heard learned counsel for the parties and taking into consideration the facts and circumstances of the case and also the fact that petitioner is knowingly involved in acquisition, concealment and transfer of proceeds of crime and projection of the same as untainted, pursuant thereto various transactions relating to purchase of immovable properties etc. were recovered and have been mentioned in detail, as referred to hereinabove. Further, Section 45(1)(ii) of the P.M.L.Act provides that notwithstanding anything contained in the Cr.P.C., no person accused of an offence under the P.M.L.Act shall be released on bail unless the Court is satisfied that there are reasonable grounds for believing that he/she is not guilty of such offence and that he/she is not likely to commit any offence while on bail. The Bombay High Court in its order dated 28.1.2022 passed in Cr. Application (BA) No. 1149 of 2019 (Ajay Kumar vs. Directorate of Enforcement, Nagpur) held as follows:

"49. We may reiterate that the reference arose out of statutory jurisdiction and not constitutional jurisdiction of this Court. Unless there is proper challenge and pleadings, the issue of constitutional validity cannot be undertaken. Undoubtedly, the Legislature has power and competence to amend the provisions of the Act. Unless the amended provision is struck down by the Courts, it cannot be watered down. Since after the amendment the entire complexion of section 45 has been changed, we are not in agreement with the contention that the entire section has to be reenacted by way of amendment after decision in the case of Nikesh Shah (Supra). Therefore, in our opinion, the twin conditions would revive and operate by virtue of Amendment Act, which is on date in force. In view of that, we answer the reference by stating that the twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T.Shah vs. Union of India (2018) 11 SCC 1, [LQ/SC/2017/1718] stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018."

9. Further, the Hon'ble Supreme Court in its order dated 4.1.2022 passed in Cr. Appeal no. 21 of 2022 (The Assistant Director, Enforcement Directorate vs. Dr. V.C. Mohan) held as follows :

"Mr. Dama Seshadri Naidu, learned senior counsel appearing for the respondent invited our attention to the dictum in paragraph 42 of the judgment in Nikesh Tarachand Shah vs. Union of India & Anr. reported in (2018) 11 SCC 1 [LQ/SC/2017/1718] . The observations made therein have been misunderstood by the respondent. It is one thing to say that Section 45 of the PMLA Act to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered-although the application is under Section 438 of Code of Criminal Procedure. As aforesaid, the High Court has not touched upon this aspect at all. It is urged before us by the respondent that this objection was never taken before the High Court as it is not reflected from the impugned judgment. It is not a question of taking objection but the duty of court to examine the jurisdictional facts including the mandate of Section 45 of the PMLA Act, which must be kept in mind. Accordingly, we deem it appropriate to set aside the impugned judgment and order and relegate the parties before the High Court for reconsideration of Criminal Petition No. 4134 of 2021 afresh for grant of anticipatory bail filed under Section 438 of the Code of Criminal Procedure in connection with stated PMLA offence."

10. Taking into consideration the rival submissions of learned counsel for the parties and materials available on record as also in view of section 45 of the P.M.L. Act, this Court is of the opinion that the petitioner has not made out a case for grant of anticipatory bail and as such, his application for grant of anticipatory bail stands rejected.