9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2018 (1) TMI 534 - HC - Money LaunderingContinued detention of the Petitioner by denying him the right of default bail under Section 167(2) of CrPC and without formal cognizance taken of the offence committed by him in the said FIR - maintainability of petition - offence under PMLA - Held that - Here we are concerned in the present case which deals with the life and liberty of a citizen. Therefore the present petition is maintainable. In the present case on 24th June 2017 the competent court viz. the Special Judge (PC Act) took cognizance of the offences under FIR No.205/2016. Every time a supplementary charge-sheet was filed thereafter there was no need for the Court to again take cognizance of the same offences qua the additional accused. The Court further notices that the Petitioner was himself aware of his inclusion in the supplementary charge sheet which is why he applied for statutory bail under Section 167 (2) Cr PC. He has been in custody in this case from 18th July 2017 onwards and therefore was aware of developments at every stage. Therefore the question of his being in continued detention without cognizance being taken of the offence qua him does not arise. This submission of the Petitioner is accordingly negated. The Court disagrees with the learned Special Judge PMLA that since the charge sheet had already been filed in a proper Court on 14th October 2017 i.e. prior to the expiry of 90 days the Petitioner was not entitled to the statutory bail under Section 167(2) Cr PC. The said order dated 30th November 2017 of the Special Judge PMLA to that extent is hereby set aside. The plea of the Petitioner that since no cognizance has yet been taken of the offence qua the Petitioner the continued detention of the Petitioner in the judicial custody is illegal is rejected. The failure by the Investigating Agency to file a supplementary charge-sheet qua the Petitioner before the Court having jurisdiction i.e. the Court of the Special Judge PMLA before the expiry of 90 days i.e. on or before 16th October 2017 would entitle the Petitioner to the relief of the statutory bail/default bail under Section 167(2) Cr PC. Accordingly the Petitioner is directed to be released on bail in FIR No.205/2016 subject to his furnishing a personal bond in the sum of Rs. one lac with one surety of the like amount to the satisfaction of the Special Judge PMLA with specified conditions.
Issues Involved:
1. Legality of continued detention without default bail under Section 167(2) CrPC. 2. Cognizance of offences under the IPC and PC Act. 3. Transfer of the case to the Special Judge (PMLA). 4. Filing of the supplementary charge sheet. 5. Entitlement to statutory bail under Section 167(2) CrPC. 6. Maintainability of the writ of habeas corpus. Detailed Analysis: 1. Legality of Continued Detention Without Default Bail Under Section 167(2) CrPC: The petitioner argued that his continued detention under FIR No. 205/2016 without being granted default bail under Section 167(2) CrPC was illegal. He was taken into custody on 18th July 2017, and the 90-day period for filing the charge sheet expired on 16th October 2017. The Supreme Court's decision in Central Bureau of Investigation v. Anupam J. Kulkarni was cited to assert that the total period of custody should not exceed 90 days, beyond which the accused is entitled to bail unless a charge sheet has been filed. 2. Cognizance of Offences Under the IPC and PC Act: The Special Judge (PC Act) took cognizance of the offences under FIR No. 205/2016 on 24th June 2017. The petitioner contended that cognizance had not been taken of the offences mentioned in the supplementary charge sheet dated 14th October 2017, which was necessary for continuing judicial custody under Section 309(2) CrPC. The court referred to the Supreme Court's observation in Prasad Shrikant Purohit v. State of Maharashtra, stating that cognizance is taken of the offence, not the offender, and once cognizance is taken, it applies to all subsequent supplementary charge sheets for the same offence. 3. Transfer of the Case to the Special Judge (PMLA): The case was transferred to the Special Judge (PMLA) on 10th October 2017, as the offences were punishable under the PMLA. The Special Judge (PC Act) directed the supplementary charge sheet to be filed before the Special Judge (PMLA). The administrative process of transferring the file caused a delay, and the charge sheet was ultimately filed in the Special Judge (PC Act) court on 14th October 2017. 4. Filing of the Supplementary Charge Sheet: The supplementary charge sheet was filed in the Special Judge (PC Act) court on 14th October 2017, before the expiry of the 90-day period. However, the court noted that after the transfer order on 10th October 2017, the Special Judge (PC Act) became functus officio (having no further authority) regarding this case. 5. Entitlement to Statutory Bail Under Section 167(2) CrPC: The court concluded that the failure to file the supplementary charge sheet in the competent court (Special Judge, PMLA) before the expiry of 90 days entitled the petitioner to statutory bail under Section 167(2) CrPC. The court disagreed with the Special Judge (PMLA) that the charge sheet filed on 14th October 2017 in the Special Judge (PC Act) court was sufficient. 6. Maintainability of the Writ of Habeas Corpus: The court held that a writ of habeas corpus is maintainable whenever the custody of the petitioner is alleged to be unlawful. The legality of the custody is to be examined with reference to the date of filing the reply by the respondent, not with reference to subsequent proceedings. The court cited Ram Narayan Singh v. State of Delhi to support this view. Summary of Conclusions: (i) The plea that the continued detention was illegal due to lack of cognizance taken of the offence qua the petitioner was rejected. (ii) The petitioner was entitled to statutory bail due to the failure of the Investigating Agency to file the supplementary charge sheet in the competent court before the expiry of 90 days. Directions: The petitioner was directed to be released on bail in FIR No. 205/2016, subject to furnishing a personal bond and surety, surrendering his passport, not leaving the country without permission, and not contacting witnesses or interfering with the trial. The order will not influence the pending bail application under the PMLA case. The writ petition and application were disposed of with no orders as to costs.
|
