Mehul Choksi Files Application To Cancel Non Bailable Warrant Against Him Citing “Fear of Mob Lynching” As One Of Reasons For Non-Appearance
Fugitive jeweller Mehul Choksi, the owner of Gitanjali Gems, who is alleged to be involved in the Rs.17,200 crores PNB fraud along with his nephew Nirav Modi, has filed an application to cancel the non-bailable warrants issued against him in the case filed against him by the Enforcement Directorate(ED) under the Prevention of Money Laundering Act(PMLA). The Sessions Court, Greater Bombay, acting as the special court under the PMLA, had issued two warrants against him- one on March 3, 2018, immediately after the ED registered the case and two, on July 3, 2018, after the Court took cognizance on the charge-sheet filed by ED.
Among several legal and factual challenges raised by Choksi against the warrant, it is stated that his non-appearance before authorities in India was due to “fear of mob lynching”. In his application, Choksi stated the trend of mob lynching in India was growing , which made him fear for his life. The petition states as follows :
“There have been various reported cases of mob lynching, and one of the cases was in relation to an accused who was mob lynched while being inside a jail. This recent trend of mob lynching is growing and is attempting to giving justice on the road by the general public, and subsequently, there is no prosecution because of non-identification of a particular individual is giving rise of the said tendency....
There are other safety threats also from other inmates/ hardened criminals, who are either convicted and/ or being tried for offences like terrorism, sexual offences, murder, drug peddler, etc...
There is a high risk of extortion by jail staff and the other inmates,”.
Apart from that, following grounds are raised in the application filed through Advocate Sanjay Abbot under Section 70(3) of the Code of Criminal Procedure to cancel NBW:-
- The Court has no authority to issue a warrant to compel the appearance of accused before the investigating officer. Therefore warrant dated 03.07.2018 was issued on the request of ED, is unsustainable. Reference is made to decision in State (CBI) v/s Dawood Ibrahim Kaskar AIR 1997 SC cases 636 to buttress the point that warrant cannot be issued to aid investigation.
- The authority under the PMLA has the power of “civil court” as per Section 2 and summons could have been issued to him. Without exploring such options, warrant has been issued to him, contrary to the law settled by the SC in and Inder Mohan Goswani and anr V/s State of Uttaranchal and others 2007 (4) JCC 2843 that NBW should not be issued in a mechanical manner.
- His passport was revoked by the authority under the Passports Act, as a result of which he cannot travel to India.
- He has health issues, which makes his travel difficult.
- The CBI has also registered an FIR in relation to the same transaction. The proceedings by ED in respect of the very same transaction are unsustainable.
- The investigation carried out by CBI is illegal as it has not obtained sanction of State Government under Section 6 of Delhi Special Police Establishment Act.
- The authorities are highly biased against him. His colleagues have been subjected to illegal arrest, harassment and unlawful detention. His assets were seized and attached in illegal manner.
- He is a law-abiding citizen and not an absconder. He has replied to the summons issued by the authorities and has co-operated with the investigation.
Along with this, Choksi has filed another application, under Section 44 of the PMLA, seeking joint trial of the cases registered by ED and CBI. The case by CBI under Section 420 IPC r/w Section 13(2) & 13(1)(d) of the Prevention of Corruption Act is pending before the Court of Special Judge CBI, Mumbai. He has prayed that the case under PMLA be transferred to the Court of Special Judge CBI for being jointly tried along with the CBI case, on the ground that the substratum of both cases was the same. The application is on the premise that “if the acts of accused in the same transaction constitute more than one offence, the accused may be charged with and tried at one trial for each of such offences” and that the joint trial will avoid “multiplicity of proceedings” and “double agony to the accused”.Read the Application Here