Relief for Omkar builders as Bombay High Court refuses to hear ED plea

Without granting any immediate relief to the Enforcement Directorate (ED) in the Omkar builder case, the Bombay High Court has asked the agency to approach the bench hearing bail assignment.

The ED had approached the bench of Justice Bharti Dangre, who has the bail assignment, but the court had refused to urgently hear the matter. The ED had then filed a petition in which they contended that the lower court order granting the release of two accused—Babulal Verma and Kamalkishore Gupta—on the ground of illegal detention had to be quashed.

The agency filed a writ under Section 482 with Justice PD Naik’s court on Wednesday, seeking a reversal of the lower court’s order. Justice Naik granted the agency an expedited hearing on Thursday.

During the hearing of the ED petition on Thursday, Advocate Vijay Aggarwal, appearing for one of the accused of Omkar builder, raised a preliminary objection to Justice Naik hearing the application. He said that since circulation of the plea had been denied by one single judge of the high court, ED had changed the nature of the application in order to bring it before another single judge.

Advocate Aabad Ponda, appearing for another accused, stated that since the release order of the special PMLA court was directed along with the furnishing of surety or bail bond, it should be challenged before a bail hearing bench.

WHAT DID ED SAY

The primary contention of Advocate Hiten Venegaokar, who was representing the ED, was that the order was blatantly illegal. He said that the order was required to be set aside and hence the agency had approached under Section 482 of the Code of Criminal Procedure.

Venegaonkar also contended that if the judge had directed the release of the accused on the grounds that any further custody would be illegal, the court would have caused confusion by imposing conditions of furnishing surety, as that would mean that it was bail which is granted when custody is legal.

Venegaonkar suggested to the court that it dismiss the special court’s observations on its jurisdiction and then direct the judge to hear the application with a fresh mind.

WHAT IS THE CASE ABOUT

The accused, Babulal Verma and Kamalkishor Gupta, were booked by the Aurangabad City Police in 2020 based on a first information report (FIR) registered against them for cheating and criminal breach of trust under the Indian Penal Code (IPC).

The same year, the ED also registered an Enforcement Case Information Report (ECIR) under the Prevention of Money Laundering Act (PMLA) based on the FIR.

The ED arrested the accused in January 2021 and, after initial ED custody, they were remanded to judicial custody, which was extended from time to time. The agency also filed a chargesheet against the accused.

However, in that case, a closure report was filed before the concerned magistrate in the Aurangabad FIR, and in February 2021, the magistrate accepted the closure of the investigation.

The accused moved the special PMLA court, opposing the extension of their judicial custody. And in the meantime, the Supreme Court judgement in July came on the PMLA cases, which stated that if the predicate offences are closed against an accused, then the money laundering case cannot stand on its own footing.

The special court posted the matter for final hearing on the application, and in the meantime, when the Supreme Court judgement was cited, the trial court directed immediate release of the accused.

After hearing all the sides, Justice Naik observed that since the order of the lower court contained provisions for bail and surety bond, it was essentially an order that ought to be challenged before a bench of the high court hearing bail assignment.

READ | Mumbai court grants bail to two in money laundering case citing SC PMLA guidelines

— ENDS —