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TMI Blog2023 (10) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned Court during the course of investigation when an accused person is not available despite efforts or after filing of the chargesheet when the person who has been summoned by the concerned Trial Court does not appear to face trial. Another possible situation can be where warrants issued against a person during the course of investigation could not be executed and a chargesheet/complaint is filed with respect to the other accused persons and the person against whom warrants have been issued is shown as absconding. In the present case, open ended nonbailable warrants remained unexecuted till the complaint was filed and cognizance was taken by the learned Special Court. It is also relevant to note that the said non-bailable warrants were never returned to the learned Special Court. In the present complaint, the respondent is not being shown as an absconder. There is no mention of NBWs being issued, during the course of investigation, in the complaint. In the instant case, admittedly, upon completion of investigation, the complaint had been filed, in pursuance of which summons had been issued to the present respondent. If the unexecuted non-bailable warrants issued prior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, open ended bailable warrants were issued by Mr. Naresh Kumar Malhotra, Special Judge, New Delhi vide order dated 12.01.2018. It is the case of the petitioner that on completion of investigation, a complaint was filed against 11 persons including the present respondent under Section 44 for the PMLA for commission of offences under Section 3/70 punishable under Section 4 of the said act. iii. Upon filing of the said complaint, summons were issued to the 11 persons including the present respondent vide order dated 19.03.2021 passed by the learned Special Judge (PC Act): CBI-15, Rouse Avenue District Court, New Delhi. iv. As per the records of the present case, the present respondent arrived in India at Netaji Subhash Place Airport, West Bengal on the night of 13.02.2023 at 23:15 hours. In view of the open ended non-bailable warrants, a look-out circular was in operation and the respondent was detained at the said airport. Subsequently, said non-bailable warrants were executed by the department on 14.02.2023 at 2100 hours. v. The respondent was produced before the learned Special Court on 15.02.2023 and was sent to judicial custody. vi. On the same day, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the proceeds of crime to hide the real source of the money and has thus being the representative of Ms Interdev, Aviation Services Pvt. Ltd, actually involved in the possession, acquisition and layering of the proceeds of crime in the offence of money laundering. Further, investigation into his role and proceeds of crime generated by him due to this criminal activity related to the scheduled offence is pending . 32. So, when after carrying out the investigation, complaint/ charge sheet has been filed against the accused herein; cognizance of the offences has been taken ; summons have been issued pursuant to that, the Act of the agency in apprehending/arresting the accused without permission of the Court, and/or seeking his PC remand is totally un-justified in the given facts and circumstances of the case. 34. Acceding to the request of the agency would tantamount to relegating the accused to the stage of pre-cognizance which is, I would say is in- permissible in law. 35. In a given case, if the accused may intend to appear before the court to attend trial or the accused is present in person in the court alongwith his surety pursuant to the summons issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) under Section 167 of the CrPC. It is the Court s discretion to allow or deny an application moved by the investigating agency concerned seeking police custody, in accordance with Section 167(3) of the CrPC. ii. Pradeep Ram v. State of Jharkhand, (2019) 17 SCC 327 Learned Special Counsel for the department submitted that the Hon ble Supreme Court concluded that an accused person be remanded under Section 167(2) of the CrPC until such time that the investigation continues till cognizance has not been taken. It was further held that even after congizance has been taken by the competent Court, an accused can be remanded under Section 167(2) of the CrPC if he has been arrested subsequently during the course of further investigation. It was further held if cognizance is taken while the accused person was in custody, he can be remanded to judicial custody only under Section 309(2) of the CrPC. iii. Central Bureau of Investigation v. Rathin Dandapat and Others, (2016) 1 SCC 507 Learned Special Counsel submitted that in the said case, while placing reliance on Dawood Ibrahim Kaskar (supra), the Hon ble Supreme Court held that police remand can be sought under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e unexecuted NBW s so issued to the Court at the time of filing the complaint in the present matter, which has not done by the department for the plausible reasons best known to them, nor the said fact was apprised to the Court at that time or even thereafter. 38. On a specific query by the court regarding the steps taken by the agency qua the execution of the NBWs, the learned PP after discussing with the IO of the case candidly admitted to the fact that no steps whatsoever were taken by the agency after the NBWs were taken from the Court vide its order dated 12.01.2018. 39. Even otherwise also, the proper recourse available to the agency was to handover the said NBWs outstanding against the accused as and when it came to their knowledge, and the act of the agency apprehending the accused in terms of said NBWs is not justified. It was submitted that inadvertence or a mistake on the part of the investigating agency cannot be a ground to curtail liberty of an accused person. It was submitted that even in the application seeking issuance of nonbailable warrants filed by the department, nothing was placed on record to show that the summons issued by the department we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titled Raghuvansh Dewanchand Bhasin v. State of Maharashtra Anr. wherein in para 23 the following guidelines are laid down which are as under: 23. However, before parting with the judgment, we feel that in order to prevent such a paradoxical situation, we are faced with in the instant case, and to check or obviate the possibility of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, it would be appropriate to issue the following guidelines to be adopted in all cases where non-bailable warrants are issued by the Courts:- (a) All the High Court shall ensure that the Subordinate Courts use printed and machine numbered Form No.2 for issuing warrant of arrest and each such form is duly accounted for; (b) Before authenticating, the court must ensure that complete particulars of the case are mentioned on the warrant; (c) The presiding Judge of the court (or responsible officer specially authorized for the purpose in case of High Courts) issuing the warrant should put his full and legible signatures on the process, also ensuring that Court seal bearing complete particulars of the Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing on behalf of the respondent further submitted that insistence of the department for seeking police custody of the respondent even after declining the same, by the learned Special Court, is not justified. It is pointed out that after being granted interim bail, the respondent has joined investigation as and when called by the Investigating Officer. During the course of investigation, it was pointed out that the present respondent has been arrested by department in another case and he is in judicial custody in the said case. It was also pointed out that after being released on interim bail, the respondent had moved an application for regular bail before the learned Special Court, which is still pending adjudication. It was also submitted that the present respondent is 75 years old and has various medical ailments and retaining him in custody will serve no purpose. 12. Learned counsel appearing on behalf of the respondent, lastly, drew the attention of this Court to an judgment dated 26.10.2021 passed by a coordinate bench of this Court in BAIL APPLN. 3619/2021 titled Ankit Agarwal v. Directorate of Enforcement (Neutral Citation - 2021: DHC: 3378), whereby anticipatory ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation registered RC No. 217 2016A0015/ACU-V under Section 120B of the Indian Penal Code read with Sections 7/8/9/12/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. ii. 04.11.2016 Pursuant to the aforesaid case, the department registered ECIR/09/2016/DLZO. iii. 12.01.2018 Open ended non-bailable warrants were issued qua the respondent. iv. 08.12.2020 Under Section 44 of the PMLA, the department filed a prosecution complaint before the Court of the learned Special Judge (PMLA), Rouse Avenue Courts for commission of offences under Section 3/70 of the PMLA punishable under Section 4 of the said Act against 11 accused persons, including the present respondent who was arrayed as accused no. 11: 11. Sh. Dev Inder Bhalla, S/o Rajinder Paul Bhalla (Representative of M/s Interdev Aviation Serviced Pte. Ltd. (i) No. 370 F, Alexandra Rd #03-04, The Anchorage, Singapore 159959 (ii) No. 1, Tanjong Rhu Road #06-03, Singapore 436879 v. 19.03.2021 The learned Special Court took cognizance of the complaint for offence under Section 3/70 of the PMLA punishable under Section 4 of the said Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een issued is shown as absconding. In Dawood Ibrahim Kaskar (supra), the Hon ble Supreme Court was dealing with a similar situation where an application was moved on behalf of the Central Bureau of Investigation for issuance of non-bailable warrants and publication of proclamation under Section 8(3)(a) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 against the absconding accused named in the chargesheet. In Dawood Ibrahim Kaskar (supra), the charge-shseet was filed showing the said accused persons as absconders. It was in this factual backdrop of the aforesaid case that the Hon ble Supreme Court held that if such a person is subsequently arrested and brought before Court, in a case where chargesheet has been filed and cognizance has been taken, with respect to other accused persons, power to grant police custody under Section 167 of the CrPC can be exercised by the concerned Court. 20. In the present case, as pointed out hereinabove, open ended nonbailable warrants remained unexecuted till the complaint was filed and cognizance was taken by the learned Special Court. It is also relevant to note that the said non-bailable warrants were never returned to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AINST THE ACCUSED/RESPONDENT AND FOR SEEKING ED CUSTODY OF ACCUSED DEV INDER BHALLA FOR 14 DAYS. The prayer in the said application is as under: 1. To accept the execution report of the open ended NBW dated 15.01.2018 and 2. To remand the accused Sh. Dev Inder Bhalla to ED custody for 14 days; and/or 3. To pass such other or further orders as this Hon ble Court may deem fit and proper in the interest of justice. (emphasis supplied) It is pertinent to note that apart from averments made in paragraph 14 of the said application that having reached a very objective satisfaction that the arrest and interrogation of Sh. Dev Inder Bhalla is absolutely necessary as the accused is required to be confronted with the material/evidence against him and other known and unknown accused person , there is no mention that the said arrest was made in pursuance of Section 19 of the PMLA, which provides as under: 19. Power to arrest. ( 1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order passed by the authority under Section 19(1) of the PMLA, 2002. Section 167 of the CrPC, 1973 is also meant to give effect to Section 19 of the PMLA, 2002 and therefore it is for the Magistrate to satisfy himself of its due compliance. Upon such satisfaction, he can consider the request for custody in favour of an authority, as Section 62 of the PMLA, 2002, does not speak about the authority which is to take action for non-compliance of the mandate of Section 19 of the PMLA, 2002. A remand being made by the Magistrate upon a person being produced before him, being an independent entity, it is well open to him to invoke the said provision in a given case. To put it otherwise, the Magistrate concerned is the appropriate authority who has to be satisfied about the compliance of safeguards as mandated under Section 19 of the PMLA, 2002... (emphasis supplied) 23. Following the aforesaid judgment, the Hon ble Supreme Court in a recent judgment dated 03.10.2023 in Criminal Appeal Nos. 3051-3052 of 2023 titled Pankaj Bansal v. Union of Indian and Ors (2023 IN SC 866), held as under: 16. In terms of Section 19(3) of the Act of 2002 and the law laid down in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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