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2017 (9) TMI 852 - HC - Money LaunderingGrant of bail - offence under the Prevention of Money Laundering Act, 2002 - petitioner, without approaching the Special Court under the PMLAct, 2002 for grant of bail, has preferred the present petition seeking bail in on the ground that his remand in judicial custody is illegal and without any jurisdiction of the learned Special Court to remand the petitioner any further after the presentation of the prosecution under Section 44 of the PMLA Held that - The petitioner had earlier been remanded to custody with specific endorsement. However, for the fault of the Court, the prosecution cannot be made to suffer. Otherwise also, such departures from the procedure would come within the category of irregularity and not an illegality. This Court has perused the order of remand, though recorded by the Reader which says that the case is adjourned for a particular date for the purpose already fixed. This can, for the purposes of this case, be read as remand till that date . This Court in the aforesaid circumstances feels it necessary to caution the learned Special Court to be careful while dealing with such matters which concern the liberty of an individual. Such remands, in the name/garb of further investigation, cannot be continued for perpetuity as it would militate against the spirit of the procedural laws enacted for the purposes of giving specific time lines for the investigation of a case and commencement of the trial. Any mechanical order of remand, then, cannot be countenanced. It is, however, again made clear that this Court has not gone into the merits of the case so far as the petitioner is concerned and, therefore, the petitioner would be at liberty to approach the Special Court, PMLA for grant of bail on individual merits of his case. This bail application has only been considered with regard to the legality of the remand of the accused in either E.D custody or judicial custody.
Issues Involved:
1. Legality of the remand of the petitioner to judicial custody. 2. Application of relevant legal provisions under PMLA and Cr.P.C. 3. Validity of the remand orders passed by the Special Court. 4. Cognizance of the offence and its implications on remand. Issue-wise Detailed Analysis: 1. Legality of the remand of the petitioner to judicial custody: The petitioner argued that his remand in judicial custody was illegal as the Special Court lacked jurisdiction to remand him further after the presentation of the prosecution under Section 44 of the PMLA without taking cognizance. The petitioner was arrested on 05.06.2017 and remanded to E.D custody by the Special Court, PMLA. The prosecution/complaint was filed on 02.08.2017, and the petitioner was continuously remanded to E.D custody. The petitioner argued that his remand exceeded the permissible period of 60 days and was not in accordance with the statutory provisions, thus entitling him to bail. 2. Application of relevant legal provisions under PMLA and Cr.P.C: The judgment discusses the application of Sections 19, 43, 44, and 45 of the PMLA and Sections 167, 173, and 309 of the Cr.P.C. Section 19 of the PMLA outlines the power of arrest, requiring the arrested person to be taken to a Magistrate within 24 hours. Section 44 of the PMLA specifies that offences under the Act are triable by Special Courts, which can take cognizance of offences without committal proceedings. Section 167 of the Cr.P.C deals with the procedure when the investigation cannot be completed in 24 hours, allowing remand for a maximum of 60 or 90 days depending on the offence. Section 309 of the Cr.P.C allows remand post-cognizance for the purpose of adjournment or further investigation. 3. Validity of the remand orders passed by the Special Court: The petitioner contended that the remand orders were illegal as they were signed by the Reader of the Court and not the Presiding Officer, and some orders did not specify the remand period. The Court acknowledged these procedural irregularities but did not find them sufficient to grant bail. It emphasized that remand orders must be passed by the Court and not by its staff, and remand periods should not exceed 15 days in one go. 4. Cognizance of the offence and its implications on remand: The Court examined the concept of cognizance, which involves judicial notice of an offence. It was argued that cognizance was taken on 25.02.2017 against other accused, and the complaint against the petitioner was tagged with the main complaint, implying cognizance against the petitioner as well. The Court held that the remand post-02.08.2017 was under Section 309 of the Cr.P.C for further investigation, which is permissible even after cognizance is taken. Conclusion: The Court dismissed the bail application, stating that the remand of the petitioner was legal under Section 309 of the Cr.P.C for further investigation. However, it criticized the procedural lapses, such as remand orders being signed by the Reader and remand periods exceeding 15 days, and cautioned the Special Court to adhere strictly to procedural requirements. The petitioner was advised to approach the Special Court for bail on individual merits.
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