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TMI Blog2018 (1) TMI 534X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vention of Money Laundering Act, 2002 ('PMLA'). Cognizance of offences under PC Act and IPC 4. The aforementioned charge-sheet was perused by the learned Special Judge (PC Act) Anti-Corruption Bureau, Tis Hazari Court, New Delhi on 24th June 2017 and the following order was passed: "Submissions advanced by Ld. APP for state & ACP Ishwar Singh are heard. Record is perused. ACP Ishwar Singh submits that CS is being filed today since investigation is complete qua accused persons named in Column No.11 and further investigation is pending against Yogesh Mittal & other persons. He submits that accused person Raj Kr. Goel and Ashish Kumar are in JC in present case. He submits that cognizance may be taken since two of accused persons are in JC and their detention needs to be authorized under Section 309 CrPC. He submits that the Public Servant Ashish Kumar is no longer in the employment of the Bank and therefore sanction is not necessary. In light of submissions advanced and material on record, cognizance is taken of the offences U/s 406/409/420/120B/109/467/468/471 r/w 34 of IPC & Sections 11/12/13 of PC Act. There is sufficient material to proceed against the accused persons named i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... far as the present case is concerned, when the matter was listed before the Special Judge (PC Act) at Tis Hazari Court on 10th October 2017, an application moved by the ED under Section 44(c) PMLA, was taken up for consideration. A request was made by the ED that since the said case involved offences punishable under the PMLA, it should be transferred to the Special Judge dealing with PMLA cases. None of the counsel for the accused in FIR No.205/2016 opposed the said request. Accordingly, the learned Special Judge (PC Act) by an order passed on that date i.e. 10th October 2017 transferred the case arising from FIR 205/2016 to the Court of the learned Special Judge (PMLA), Saket Court under Section 44(c) PMLA. It was directed that the accused in judicial custody should be presented before the said Special Judge (PMLA) on 16th October 2017. The accused, who were on interim bail, were asked to remain present before that Court on the date fixed. 10. At that stage, another submission was made by the IO of FIR No.205/2016 which was recorded by the learned Special Judge (PC Act) in the same order dated 10th October 2017 as under: "At this stage, IO ACP Ishwar Singh submits that in the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... file to the transferee court immediately." Filing of supplementary charge sheet 13. It is stated that on 13th October 2017, the Investigating Agency was ready to file the charge-sheet qua the Petitioner herein in FIR No.205/2016. The Investigating Agency also approached the District Judge Court at Saket Court but for some reason the case file had not reached that Court. It is further stated that, on 14th October 2017, since the case file was under administrative transfer process, the Investigating Agency apprised the Special Judge (PC Act), and filed the charge sheet against the present Petitioner as accused in that Court i.e. the court of the Special Judge (PC Act) on the 88th day of the stipulated period of 90 days. The learned Special Judge (PC Act) passed the following order on 14th October 2017: "14.10.2017 Present: Sh. Atul Shrivastava, learned Addl. PP for the State. IO AGP Ishwar Singh with case file. Accused Yogesh Mittal not produced from JC. Fresh Supplementary charge sheet qua the accused Yogesh Mittal filed. Be checked and registered. Vide order dated 10.10.2017, the main case has been committed/transferred to the Court dealing with the cases of PMLA at Saket C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge sheet received vide order dated 14.10.2017 of District and Session Judge (HQs). The main charge sheet also was received today and assigned to the court of Shri A.K. Kuhar, learned ASJ-02, South East, Saket and both sides were directed to appear before the concerned court today itself i.e. 17.10.2017 at 03:00 pm. It is after the said order that the present file has been put up. This supplementary charge sheet also is assigned to the court of Shri A.K. Kuhar, learned ASJ-02, South East, Saket. File be sent immediately, to be put up before the learned court of Shri A.K. Kuhar, learned ASJ-02, South-East, Saket today itself at 03:00 pm with the main charge sheet. In view of orders dated 10.10.2017, 11.10.2017 and 12.10.2017, the trial of this case is assigned to the court of Shri A.K. Kuhar, learned ASJ-02, South-East, Saket, New Delhi for proceeding further in accordance with law. File be sent to the court concerned immediately and both sides shall appear before the learned concerned court of Shri A.K. Kuhar, learned ASJ-02, South-East, Saket today itself i.e. 17.10.2017 at 03:00 pm." 17. At 3.10 pm on 17th October 2017, the Special Judge (PMLA) heard the case. Inter alia, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA). Therefore, the question of continuing the Petitioner's judicial custody under Section 309 (2) Cr PC did not arise. Mr. Chaudhary referred to the specific observations of the Supreme Court in Central Bureau of Investigation v. Anupam J. Kulkarni (supra). 20. While Mr. Chaudhary did not dispute that on 24th June 2017, the learned Special Judge (PC Act) had taken cognizance of the offences qua the other accused persons, he argued that that did not dispense with the need for the competent court to subsequently take cognizance of the offence qua the Petitioner after the charge sheet against him was filed. Reliance was placed on the observations of the Supreme Court in Prasad Shrikant Purohit v. State of Maharashtra (2015) 7 SCC 440. Mr. Chaudhary also placed reliance on the observations of the Supreme Court in Dharmatma Singh v. Harminder Singh (2011) 6 SCC 102. 21. The second submission of Mr. Chaudhary was that the charge sheet qua the Petitioner ought to have been filed on or before 16th October 2017 in the competent court and that there was no excuse for the Investigating Agency not to do so despite the order of the Special Judge (PC Act) dated 10th October 2017. His primary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there was no dispute as to the fact that the file was ultimately received by that Court only at 3.10 pm on 17th October 2017. It is pointed out, therefore, that as far as Section 167 (2) Cr PC is concerned, the charge sheet was filed before the expiry of 90 days before the Court that was still competent to take cognisance and thus, the Petitioner was not entitled to statutory bail but could only seek regular bail. It is accordingly prayed that the present petition be dismissed as misconceived. Maintainability 25.1 At the outset, it requires to be noticed that a writ of habeas corpus is maintainable whenever it is alleged that the custody of the Petitioner is unlawful. Further, the Court has to examine the lawfulness of the custody on the date of filing of the reply by the Respondent and not with reference to the proceedings that may be instituted thereafter. In this context, reference may be made to the decision in Ram Narayan Singh v. State of Delhi AIR 1953 SC 277. 25.2 In that case, a petition seeking a writ of habeas corpus under Article 32 of the Constitution had been filed before the Supreme Court stating that four persons had been arrested on the evening of 6th Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been done in this case. The petitioners now before us are therefore entitled to be released, and they are set at liberty forthwith." 26. It is the above 'forms and rules of law' with which we are concerned in the present case which deals with the life and liberty of a citizen. Therefore, the present petition is maintainable. Cognizance 27.1 First, the Court would like to consider the issue of taking of cognizance of the offence by the Court empowered to do so. In this regard there is a detailed discussion of the legal position in Prasad Shrikant Purohit v. State of Maharashtra (supra). 27.2 The facts of that case were that there had been a bomb explosion on 23rd November 2003 at a mosque at Parbhani and the case had been registered as CR No.63/2003 (Parbhani Bomb Blast Case). There had been another bomb explosion at a mosque at Jalna on 27th August 2004 and the case was registered as CR No.194/2004 (Jalna Bomb Blast Case). 27.3 The charge sheet in Parbhani Bomb Blast Case was filed on 7th September 2006 against accused no.1 (Prasad Purohit) for various cognizable offences under IPC, Explosives Act and Arms Act. A supplementary charge sheet was filed in the Parbhani Bomb Blast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) If answer to Question (i) is in the negative, whether for the purpose of grant of bail under Section 21(4)(i) of MCOCA, can it be held that the application of MCOCA is not made out against the appellants and consequently the rejection of bail by the trial court and as confirmed by the High Court is Justified?" 27.9 The Supreme Court, on the aspect of taking cognizance, observed as under: "63. When we read the said Section 173 (2) (i) along with Section 190 Cr PC, it can be seen that any Magistrate of the First Class or any Magistrate of the Second Class specially empowered as provided under sub-section (2) of the said section may take cognizance of any offence upon a police report of such facts. Therefore, reading Section 173(2)(i) along with Section 190(1)(b), a duty is cast upon the officer in charge of the police station mandatorily to forward to the Magistrate who is empowered to take cognizance of the offence on a police report. Under Section 190(1)(b) any Magistrate of the First Class and for that matter any Magistrate of the Second Class who is empowered by the Chief Judicial Magistrate for taking cognizance under sub-section (1) can take cognizance of any offence b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen under the provisions of CrPC, Judicial Magistrate of First Class has been empowered to take cognizance of any offence based on a police report, we fail to see any hurdle to state that on taking cognizance in that manner, the said court should be held to be the competent court for satisfying the requirement of Section 2 (1) (d) of MCOCA. In this respect, we will have to bear in mind that the implication of MCOCA would come into play only after the third occurrence takes place and only after that it will have to be seen whether on the earlier two such occasions involvement of someone jointly or singly, either as a member of an "organised crime syndicate" or on its behalf indulged in a crime in respect of which a charge-sheet has already been filed before the competent court which court had taken cognizance of such offence. 67. Therefore, we are able to state the legal position without any ambiguity to the effect that in the event of a Judicial Magistrate, First Class or an empowered Second Class Magistrate having taken cognizance of an offence based on a police report as stipulated under Section 173 (2) (i) Cr PC, such cognizance of an offence would fulfil the requirement of tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... izance is entirely an act of the Magistrate. Taking cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons." 29. 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. 30. The supplementary charge sheet is qua the present Petitioner, Yogesh Mittal, whose name is now shown in Column 11. Further, while the supplementary charge sheet states in para 16.43 that "he is running in judicial custody" and that "cognizance be taken against him", the legal position is such that there was no need for the Court to specifically pass another order taking cognizance of the same offences qua the Petitioner. This is made explicit by the Supreme Court in Prasad Shrikant Purohit v. State of Maharashtra (supra). As explained therein, the option for such an accused person, who is included in the supplementary charge sheet for the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Judge (PMLA) at Saket Court. The order dated 12th October 2017 of the District Judge (HQ), Tis Hazari Courts makes it abundantly clear that the Special Judge (PC Act), after that date, could not have accepted the supplementary charge sheet filed by the CBI. 35. The problem of the file not reaching the Special Judge (PMLA) has to do with the internal administrative arrangements in the judiciary. While the CBI cannot be blamed for failing to file the charge sheet before the proper Court, since the file had not reached such Court, equally the accused cannot also be deprived of the right to statutory bail as a result thereof. It is only when the Court of the Special Judge (PMLA) received the supplementary charge sheet could it be said that the investigation qua the Petitioner was complete. That did not happen, for the reasons already noted, till 17th October 2017, by which time the 90 days period had elapsed. 36. It was repeatedly stressed by Mr. Mehra that for the fault of the Court, the prosecution cannot be made to suffer. In this context, it must be noticed that a similar contention was advanced before the learned Single Judge of this Court by the ED in Bail Application No.116 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s hereby set aside. Summary of conclusions 40. To summarize the conclusions: (i) 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. (ii) 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. Directions 41. 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 and further subject to the following conditions: (i) The Petitioner will surrender his passport to the investigating agency. (ii) The Petitioner will not leave the country without the prior permission of the Special Judge, PMLA. (iii) The Petitioner will not contact any of the witnesses cited by the prosecutio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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