2024 (2) TMI 1024 - SCH - Money Laundering

Grant of bail - Money Laundering - summons was issued and served upon the appellant, pursuant to which he surrendered himself before the Court - HELD THAT - In the instant case though there was no order passed by the Special Court for issuance of summons or warrant against the appellant, a summons under Section 61 came to be issued on 22.12.2022 requiring the appellant to appear before the Special Court on 07.01.2023. The appellant appeared before the Special Court and applied for his release on bail. Since there was no order passed by the Special Court for issuance of the summons or warrant, in our opinion, the application of the appellant seeking bail could not have been entertained. There was a basic flaw in the proceedings conducted before the Special Court. As such Section 437 would come into play when the accused is arrested or detained or when the summons or warrant is issued against the accused for causing him to be brought or to appear before the Court. In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor he could have been arrested or taken into custody. The appellant-accused also appears to have filed the bail application before the Special Court under the misconception of fact and misconception of law, which application came to be dismissed by the Special Court. The appellant accused No.10 is directed to be released on bail on the terms and conditions that may be imposed by the Special Court - Appeal allowed.

Summary

Issues:
The issues involved in this case are the non-application of mind by the Special Court in issuing summons without passing any order summoning the accused, the rejection of bail application by the Special Court, and the subsequent dismissal of the appeal by the High Court.

Non-Application of Mind in Issuing Summons:
The Special Court, while taking cognizance of the offences under the Prevention of Money Laundering Act, observed that there was no order summoning the appellant (accused No.10). Despite this, the appellant was served with summons and voluntarily surrendered before the Court. The appellant argued that without a summoning order, he should not have been taken into custody. The respondent, Enforcement Directorate, contended that even without a summons or warrant, the accused can surrender and seek bail under Section 437 of the Cr.P.C. The Court noted that there was no order for summons or warrant against the appellant, and the summons issued was erroneous.

Legal Provisions and Flaw in Proceedings:
The Court highlighted the legal provisions under Section 204 and Section 437 of the Cr.P.C. regarding the issuance of summons, warrants, and bail. It was emphasized that in the absence of an order for summons or warrant, the appellant should not have been taken into custody or had his bail application entertained. The Court acknowledged that the appellant was not arrested during the investigation or when the prosecution complaint was filed. The appellant's bail application was dismissed by the Special Court due to a misconception of fact and law.

Decision and Conclusion:
The Court, without delving into the case's merits, accepted the appeal based on the procedural irregularities. The appellant, accused No.10, was directed to be released on bail with conditions to be imposed by the Special Court. The appeal was allowed, pending applications were disposed of, and the Special Court and the Enforcement Directorate were given the liberty to take appropriate actions as per the law.