2018 (1) TMI 829 - HC - Money Laundering

Offence under PMLA - Whether a supplementary complaint is maintainable? - Held that - The extreme view that once a complaint is filed then a second complaint is totally barred and cognizance on the second complaint against a new accused person is illegal appears to be erroneous as once power of investigation is vested in an agency and cognizance can be taken on a complaint only then on a further investigation carried out with the leave of the court the investigating agency is required to place on record the said material collected during further investigation and the only mode available to the investigating agency to place on record the said material is a supplementary complaint. Thus if the Court grants leave to the investigating agency to place on record further material collected it is bound to place the same on record. Whether cognizance is required to be taken again on filing of a supplementary complaint? - Held that - cognizance is taken of the offence and not the offender. It is also well settled that cognizance of an offence/offences once taken cannot be taken again for the second time. Since this Court has already taken a view that a supplementary complaint on additional evidence qua the same accused or additional accused who are part of same larger transactions/conspiracy is maintainable however with the leave of the Court and cognizance is taken of the offence/offences not the offender and in case no new offence is made out from the additional material collected during further investigation supporting an earlier offence on which cognizance has already been taken or additional accused are arrayed no further cognizance is required to be taken. If cognizance is required to be taken whether the order passed by the learned Trial Court on 2nd August 2017 amounted to taking cognizance? - Held that - Since in the present supplementary complaint no new offence was found out and it was only additional evidence in support of the offence already filed in the main complaint and evidence against additional accused the cognizance was not required to be taken again and the order dated 2nd August 2017 passed by the learned Special Court tagging the supplementary prosecution complaint with the main complaint cannot be held to be illegal. Whether the custody of the petitioner after 11th August 2017 is illegal resulting in a right to the petitioner to be released on bail? - Held that - no order of remand in the eyes of law was passed on 11th August 2017 the remand if any was beyond 15 days hence the custody of the petitioner was illegal which additional grounds were also allowed vide order dated 25th August 2017 before the custody could be legalized on 31st August 2017. Even the bail application in the present case was heard on 29th August 2017 that is the date before the custody of the petitioner became legal hence the date of application the date of return and the date of hearing were all at the time when the custody of the petitioner was illegal hence the petitioner is entitled to be released on bail on this count itself. It is therefore directed that the petitioner be released on bail on his furnishing a personal bond in the sum of Rs.1 lakh with two sureties of the like amount subject to the satisfaction of the Special Court

Summary

Issues Involved:
1. Maintainability of a supplementary complaint.
2. Requirement of cognizance on filing a supplementary complaint.
3. Legality of the order passed by the Trial Court on 2nd August 2017.
4. Legality of the petitioner’s custody post 11th August 2017 and entitlement to bail.
5. Entitlement to bail on merits.

Issue-wise Detailed Analysis:

1. Maintainability of a Supplementary Complaint:
The Court examined divergent views on the maintainability of supplementary complaints. It noted that while some High Courts allow supplementary complaints akin to supplementary charge sheets in police cases, others do not. The Court concluded that a supplementary complaint is maintainable if the investigating agency is granted leave by the Court to place additional material collected during further investigation on record.

2. Requirement of Cognizance on Filing a Supplementary Complaint:
The Court cited the Supreme Court’s decision in Prasad Shrikant Purohit v. State of Maharashtra, which clarified that cognizance is taken of the offence, not the offender. It held that once cognizance of an offence is taken, it cannot be taken again for the same offence. Therefore, if a supplementary complaint does not disclose a new offence but provides additional evidence or names additional accused, no fresh cognizance is required.

3. Legality of the Order Passed by the Trial Court on 2nd August 2017:
The Court found that since the supplementary complaint did not disclose any new offence but provided additional evidence supporting the main complaint, the Trial Court’s order tagging the supplementary complaint with the main complaint was not illegal. Therefore, the order dated 2nd August 2017 was valid.

4. Legality of the Petitioner’s Custody Post 11th August 2017 and Entitlement to Bail:
The Court examined Section 309 Cr.P.C., which allows remand of an accused in custody for a maximum of 15 days at a time by a Magistrate. It found that the remand order dated 11th August 2017 was an administrative noting by the Reader of the Court, not a judicial order. Therefore, the petitioner’s custody from 11th August 2017 to 31st August 2017 was illegal. Citing the Supreme Court’s decisions in Ram Narayan Singh and Kanu Sanyal, the Court held that the legality of custody must be assessed as of the date of the return and hearing. Since the petitioner was in illegal custody during these dates, he was entitled to bail.

5. Entitlement to Bail on Merits:
Given the finding of illegal custody, the Court did not delve into the merits of the bail application. The petitioner was directed to be released on bail on furnishing a personal bond of Rs. 1 lakh with two sureties of the like amount, subject to conditions including surrendering his passport, not leaving the country without permission, and not contacting witnesses or interfering with the investigation.

Conclusion:
The petitioner was granted bail due to illegal custody from 11th August 2017 to 31st August 2017. The Court provided detailed conditions for the bail to ensure compliance and non-interference with the ongoing investigation.