Enforcement Directorate moves Supreme Court against bail granted to Shivinder Singh

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The Enforcement Directorate has moved the Supreme Court appealing against the Delhi High Court order which granted bail to Shivinder Singh last week in a money laundering case.

On July 23, the Delhi High court finding“no rationale” in continuing his custody as undertrial, had granted bail to Shivinder Mohan Singh, erstwhile promoter of Religare Enterprises Limited (REL) in a money laundering case registered against him by ED.

In a sharply worded judgement, the High Court ruled “criminal investigation is not a metaphorical fishing-rod handed to an investigating agency, to indulge its penchant for ‘fishing around’ for evidence, at its own leisure and in the fullness of time”.

The Court held “Investigation has to be a time-limited process, to be conducted strictly within the structure and framework of applicable law”.

Senior advocate N Hariharan assisted by Advocate Nirvikar Singh appeared on behalf of Shivinder Singh and had strongly denied Shivinder’s involvement in the alleged scam.

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The Enforcement Directorate (ED) had arrested Shivinder last December in connection with its money laundering probe against him, his brother Malvinder Singh and others.

Though granted bail, Shivinder would not walk out of Tihar jail as he stands booked in another case of fraud by the Economic Offences Wing (EOW).

Finding little force in ED’s submissions that Shivinder, if granted bail, might commit further offences, the High Court ruled “As far as the possibility of the applicant (Shivinder) committing any further offence is concerned, that ground is purely speculative and conjectural”.

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The Court recorded that all alleged offending acts and omissions with which Shivinder is charged, arise from financial transactions done in the course of commercial dealings, through banking channels.

The order passed last Thursday read “While the financial implication of the alleged offence is no doubt large in quantum, and even accepting the ED’s contention that several individual shareholders of RFL who had nothing to do with the applicant or his family, friends or associates, have suffered losses, it is not as if such losses can be compensated by keeping the applicant in judicial custody as an undertrial”.

It goes on to say “Though the offences as alleged, if proved, are serious economic offences, that in itself cannot be the basis for denying bail since the nature of offence has a limited role to play while examining a bail application.

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Although ED claims that investigation is on, no supplementary charge sheet has been filed since January 10..While it may indeed take long and painstaking effort to unravel the entire alleged crime, when there is no real and probable risk of the applicant interfering in further investigation, as displayed by the past conduct of the applicant, that cannot be reason for denying bail”.

Justice Anupam Jairam Bhambhani recorded that “ED has not indicated any foreseeable timeline for completing investigation in respect of the alleged remaining about INR 1600 crores and therefore to link Shivinder’s judicial custody to completion of that on-going investigation, if at all, would leave the key to the applicant’s custody with the ED, which is not acceptable to this court”.

Elaborating, the judgement read “nowhere is it the law that an accused, yet to be tried, is to be kept in custody only on a hunch or a presumption that he will prejudice or impede trial; or to send any message to the society. If anything, the only message that goes-out to the society by keeping an accused in prison before finding him guilty, is that our system works only on impressions and conjectures and can keep an accused in custody even on presumption of guilt”.

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The ruling adds “while in certain cases such a message may even quench the thirst for revenge of the lay society against a person they believe to be guilty, such action would certainly not leave our criminal justice system awash in glory. An investigating agency must come to court with the confidence that they have arrested an accused, based on credible material, and have filed a complaint or a charge-sheet with the certainty that they will be able to bring home guilt, by satisfying a court beyond reasonable doubt”.

It said “But when an investigating agency suggests that an accused be detained in custody as an undertrial for a prolonged period, even after the complaint or charge-sheet has been filed, it appears that the investigating agency is not convinced of its case and so it fears that the accused may ‘get-off’ by discharge or acquittal; and that therefore the only way to ‘punish the accused’ is to let him remain in custody as an undertrial”.

Granting bail to Shivinder, the Court had ruled “Prison is a place for punishment ; and no punishment can be legitimate without a trial. There must be compelling basis, grounds and reasons to detain an undertrial in judicial custody, which this court does not discern in the present case”.

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