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TMI Blog2018 (1) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 9th June, 2017 when the petitioner was sent to judicial custody. Thereafter the petitioner was remanded to judicial custody from time to time. Since for offence punishable under Section 4 PMLA sentence that could be awarded was imprisonment upto seven years, the charge sheet was required to be filed within 60 days of the arrest of the petitioner and cognizance taken thereon. The stipulated period of 60 days was expiring on 4th August, 2017, thus the second/supplementary prosecution complaint was filed before the learned Special Court on 2nd August, 2017. Before filing of the supplementary prosecution complaint, the petitioner preferred the present bail application on merits before this Court to which a counter affidavit and additional affidavit were filed by the respondent. 3. It is the case of the petitioner that on 2nd August, 2017, the learned Trial Court did not take cognizance on the supplementary prosecution complaint but directed the same to be tagged with the main complaint, thus, no cognizance having been taken till 4th August, 2017 when 60 days period expired, he is entitled to bail under Section 167 (2) of Cr.P.C. Further on 8th August, 2017 the petitioner was r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that a clear/specific endorsement was necessary and without that having been recorded, the remand was illegal, yet the Court went on to state that for the fault of the Court, the prosecution cannot be made to suffer. Another major departure from settled procedure was that the order of remand was permitted to be recorded by the Reader of the Court which would, according to the High Court, only be an irregularity and not an illegality, which is obviously incorrect in law. We are, therefore, of the considered view that, in the interest of justice, this order is set aside and the matter is remanded for hearing afresh by the High Court. All contentions are kept open to both the parties. We request the High Court to decide the matter as expeditiously as possible. Application is disposed of accordingly." 7. Learned counsel for the petitioner contends that since maximum punishment provided for an offence punishable under Section 4 PMLA is imprisonment for seven years, the petitioner could not have been remanded to custody beyond 60 days within which period the Special Court was obliged to take cognizance on the complaint. Since no cognizance was taken by the learned Special Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leased on bail. 11. Seeking dismissal of the bail application, learned counsel for the respondent contends that the supplementary complaint in the present case does not relate to a fresh offence but additional material evidence and additional accused thus warranting no fresh cognizance. The Court of Special Court being a Court of Additional Sessions Judge, the restriction of remand for a maximum period of 15 days is not provided. The petitioner has been instrumental in opening number of companies through his employees and during demonization got ₹38 crores deposited, bank drafts whereof were got prepared besides taking their commission for the balance amount. The petitioner has been influencing the witnesses, statements in which regard of the witnesses have been recorded. 12. Before proceeding to decide the bail application on merits for which it was initially filed, this Court is required to first deal with the additional grounds taken by the petitioner, that is, whether the petitioner is entitled to bail as his custody is illegal. To deal with this issue it would be appropriate to note that the first complaint was filed by the respondent in ESIR No. 18/DZO-II/2016 on 26th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint? (iii) If cognizance is required to be taken on the supplementary complaint whether the order passed by the learned Trial Court on 2nd August, 2017 amounted to taking cognizance? (iv) Whether the custody of the petitioner after 11th August, 2017 is illegal, resulting in an indefeasible right to the petitioner to be released on bail? And/or (v) Whether the petitioner is entitled to bail on merits? 16. Issue No. (i): Whether a supplementary complaint is maintainable? If yes, whether even without the leave of the Court? 16.1 Divergent views have been taken by various High Courts in this regard. In the decision reported as Manu/JH/0515/2014 Narendra Mohan Singh vs. Directorate of Enforcement, Ranchi & Anr. a Single Judge of the Jharkhand High Court though did not discuss the provisions in this regard but held: 15. Going further into the matter, it be stated that the question has been raised over the maintainability of the supplementary complaint on the premise that the provisions as contained in Section 44(1)(b) and 45 of the P.M.L. Act, refers to 'a complaint'. Even if such reference is there of 'a complaint', it never prevents of filing of supplementa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a complaint and in order to correct patent ex-facie errors, which do not prejudice the accused or in certain circumstances where the trial of the offence or the offenders in the subsequent complaint are to be conducted together. In the aforesaid factual matrix, I am of the view that the filing of the subsequent complaint and the prayer to proceed against the accused therein along with accused persons in the earlier complaint is in no way prejudicial to the interest of the accused persons and is, in fact, for the ends of justice and to avoid multiplicity of proceedings." 16.3 However, the Division Bench of Punjab & Haryana High Court in the decision reported as 2016(3) RCR (Criminal) 883 Arun Sharma vs. Union of India & Ors. rejecting the contention of the petitioner therein that Section 173(8) Cr.P.C. would apply in PMLA complaint cases held that Section 173(8) Cr.P.C. cannot be applicable in absence of a report under Section 173(2) Cr.P.C. The Special Leave Petition filed by Arun Sharma being SLP (Crl.) No. 5978/2017 was dismissed. Further a learned Single Judge of the Karnataka High Court in the decision reported as ILR 2002 KAR 2175 Ajit Narain Haskar & Ors. vs. Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not open to the Judge to contend that the first complaint is against the vendor and the supplier specifically when the manufacturer was made a party in the first complaint itself. Moreover, under the Prevention of Food Adulteration Act only one complaint is filed by the Department against all the accused persons whether they are vendors, suppliers, distributors or manufacturers. There is no provision in Cr.P.C. for filing of a second complaint which may be akin to the filing of a supplementary charge-sheet in a police case. Therefore, I feel the reasoning given by the learned Magistrate as well as the learned Sessions Judge in this regard was totally erroneous. I am of the view that only the first complaint against the petitioner was sustainable. 16.5 The Division Bench of the High Court of Himachal Pradesh at Shimla in the decision reported as 2017 SCC OnLine HP 1808 Khekh Ram vs. Narcotics Central Bureau & Anr. taking note of the various decisions of different High Courts and disagreeing with the views expressed by the High Courts of Bombay, Karnataka, Delhi and Punjab & Haryana held: "34. As noticed above, all the decisions on the subject as have been referred to above, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. The said para 17 reads as under: (SCC p. 163) "17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and *applied his mind* to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate *applies his mind* and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender." (emphasis supplied) Even here this Court has stated in uncontroverted terms that once the Magistrate applies his mind to the offence alleged and decides to initiate proceedings against the alleged offender, it can be stated that he has taken cognizance of the offence and by way of reiteration, it is further stated that cognizance is in regard to the offence and not the offender. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alleged, to pass necessary order of committal to Court of Session. 74. In Salap Service Station [1994 Supp (3) SCC 318: 1994 SCC (Cri) 1713] , the question as to what is the implication of a supplementary report filed by the investigating agency under Section 173(8) CrPC was considered. While dealing with the same, it has been stated as under in para 2: (SCC p. 319) "2. … It may be mentioned here that in the supplementary charge-sheet allegations are to the effect that there was violation of Direction 12 of the Control Order. The question of taking cognizance does not arise at this stage since cognizance has already been taken on the basis of the main charge-sheet. What all Section 173(8) lays down is that the investigating agency can carry on further investigation in respect of the offence after a report under sub-section (2) has been filed. The further investigation may also disclose some fresh offences but connected with the transaction which is the subject-matter of the earlier report. … The purpose of sub-section (8) of Section 173 CrPC is to enable the investigating agency to gather further evidence and that cannot be frustrated. If the materials incorporate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence and not the offender and once the Magistrate applies his judicial mind with reference to the commission of an offence the cognizance is taken at that very moment. 76. To the very same effect is the judgment in Pastor P. Raju [(2006) 6 SCC 728: (2006) 3 SCC (Cri) 179]. Para 13 is relevant for our purpose, which reads as under: (SCC p. 734) "13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a prima facie case is made out." (emphasis supplied) 77. The above principle has been reiterated again in Videocon International Ltd.[(2008) 2 SCC 492: (2008) 1 SCC (Cri) 471] in para 19. Para 19 can be usefully extracted, which reads as under: (SCC p. 499) "19. The expression 'cognizance' has not been defined in the Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns/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. 18. Issue No.(iii): If cognizance is required to be taken whether the order passed by the learned Trial Court on 2nd August, 2017 amounted to taking cognizance? 18.1 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. 19. Issue No. (iv): Whether the custody of the petitioner after 11th August, 2017 is illegal, resulting in a right to the petitioner to be released on bail? 19.1 Section 309 Cr.P.C. reads as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for the reasons to be recorded, postpone or adjourn the same and may by a warrant remand an accused if in custody. The only limitation is that the Magistrate cannot remand an accused person to custody under this provision for a term exceeding fifteen days at a time. Though arguments have been advanced as to whether the Special Court on taking cognizance would act as a Court of Magistrate being a Court of original jurisdiction or as a Court of Sessions in which case the period of fifteen days would have no applicability however, in the facts of the present case this discussion need not detain this Court further for the reason the noting dated 11th August, 2017 was not by the Court but by the Reader of the Court which cannot be said to be an order of remand by a Court. This position cannot be and is not disputed by learned counsel for the respondent. Thus the custody of the petitioner from 11th August, 2017 to 31st August, 2017 is illegal. 19.3 It is strenuously contended by learned counsel for the respondent that since arguments in the bail application are being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntain on their back the following endorsements: "Remanded to judicial till 11th March, 1953." 4. In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were not produced, notwithstanding the clear direction contained in our order of the 10th March. The court records produced before us do not contain any order of remand made on the 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th. The Solicitor-General appearing on behalf of the Government explains that these slips of paper, which would be of crucial importance to the case, were with a police officer who was present in court yesterday, but after the Court rose in the evening the latter thought that their production might be of some importance and therefore they were filed before the Registrar at 5-20 p.m. We cannot take notice of documents produced in such circumstances, and we are not satisfied that there was any order of remand committing the accused to further custody till the 11th March. It has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 56 and Ram Narain Singh v. State of Delhi MANU/SC/0035/1953 : 1953 CriLJ 113 a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa MANU/SC/0085/1971 : AIR 1971 SC 2197 where it was said : "In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". and yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir MANU/SC/0202/1970: AIR1971SC62 Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing". Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presence of the counsel for the respondent followed by further application being Crl. M.A. No. 13800/2017 which came up before this Court on 25th August, 2017 inter alia urging 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. 20. Issue No.(v): Whether the petitioner is entitled to bail on merits? 20.1 Since this Court has already held that the petitioner is entitled to bail for being in illegal custody from 11th August, 2017 to 31st August, 2017 this Court need not go into the merits of the matter. 21. It is, therefore, directed that the petitioner be released on bail ..... X X X X Extracts X X X X X X X X Extracts X X X X
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