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TMI Blog2024 (5) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... the PMLA, it is apparent that Section 88 is in no manner inconsistent with the provisions of the PMLA. Therefore, Section 88 will apply after filing of a complaint under Section 44(1)(b) of the PMLA. If Section 88 is to apply even before a summons is issued or served upon a complaint, there is no reason why it should not apply after the service of summons. A discretionary power has been conferred by Section 88 on the Court to call upon the accused to furnish bonds for his appearance before the Court. It does not depend on the willingness of the accused - when an accused appears before the Special Court under a summons issued on the complaint, if he offers to submit bonds in terms of Section 88, there is no reason for the Special Court to refuse or decline to accept the bonds. Executing a bond will aid the Special Court in procuring the accused's presence during the trial. If a warrant of arrest has been issued and proceedings under Section 82 and/or 83 of the CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88. Section 88 is indeed discretionary. But this proposition will not apply to a case where an accused in a case under the PMLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2610 OF 2024 @ SLP (Crl.) NO. 698 of 2024 CRIMINAL APPEAL NO.2611 OF 2024 @ SLP (Crl.) NO. 330 of 2024 CRIMINAL APPEALNO.2612 OF 2024 @ SLP (Crl.) NO. 743 of 2024 CRIMINAL APPEAL NO.2613 OF 2024 @ SLP (Crl.) NO. 728 of 2024 CRIMINAL APPEAL NO.2614 OF 2024 @ SLP (Crl.) NO. 969 of 2024 CRIMINAL APPEAL NO.2615 OF 2024 @ SLP (Crl.) NO. 3928 of 2024 Abhay S. Oka And Ujjal Bhuyan , JJ. For the Petitioner : Mr. Sidharth Luthra, Sr. Adv. Mr. Akbar Siddique, AOR Mr. Sheezan Hashmi, Adv. Mr. Mihir Joshi, Adv. Mr. Aakash Dubey, Adv. Mr. Rahul Khare, Adv. Mr. Parv K Garg, Adv. Mr. Parwez Akhtar, Adv. Mr. Harsh Kumar Singh, Adv. Mr. Siddharth Luthra, Sr. Adv. Ms. Sakshi Kakkar, AOR Mr. Shakti Singh, Adv. Mr. Harshit Sethi, Adv. Mr. Nikhil Jain, AOR Ms. Mansi Tripathi, Adv. Ms. Divya Jain, Adv. Ms. Monica Dhingra, Adv. Mr. Harshit Sethi, Adv. Mr. Nikilesh Ramachandran, AOR Ms. Mansi Tripathi, Adv. For the Respondent : Mr. S.V. Raju, A.S.G. Mr. Sanjay Kr. Dubey, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hussain, Adv. Mr. Annam Venkatesh, Adv. Mr. Arkaj Kumar, Adv. Mrs. Rajeshwari Shankar, Adv. JUDGMENT ABHAY S. OKA, J. 1. Leave granted. FACTUAL ASPECTS 2. Since the issues involved are common a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k Munilal Jain Anr. v. Assistant Director, Directorate of Enforcement (2018) 16 SCC 158 . As there is no inconsistency between Section 88 of the CrPC and the provisions of the PMLA if, after service of summons, the accused offers to furnish bonds for appearance in terms of Section 88 of the CrPC, the Special Court should normally accept the bonds. After furnishing the bonds, if the accused fails to appear before the Special Court, recourse can always be taken by the Special Court to Section 89 by issuing a warrant for procuring the presence of the accused before the Special Court; (d) Once cognizance is taken based on a complaint, the Special Court cannot exercise the power of remand under Section 167 (2) of the CrPC. After cognizance is taken, the power can be exercised at the highest under Section 309 (2) of the CrPC; (e) In view of this Court's decision in Satender Kumar Antil v. Central Bureau of Investigation Anr. (2021) 10 SCC 773 , as clarified in the subsequent decision in Satender Kumar Antil v. Central Bureau of Investigation and Anr. (2022) 10 SCC 51; [2022] 10 S.C.R. 351 , when during the investigation, the prosecution does not seek the custody of the accused, after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to special acts like the PMLA; (e) After cognizance is taken on a complaint under Section 44 (1)(b), the ED has the right to make further investigation and file a supplementary complaint. For that purpose, the ED can always exercise its power under Section 19 of the PMLA to arrest the accused against whom the complaint is filed; (f) Though an accused against whom an allegation of commission of an offence punishable under Section 4 of the PMLA is made can apply for grant of anticipatory bail, such application shall also be governed by the conditions in Section 45 (1). Relying upon the decision of this Court in the case of Vijay Madanlal Choudhary Ors. v. Union of India Ors. 2022 SCC OnLine SC 929; [2022] 6 SCR 382 , it is submitted that money laundering is an offence against the nation. Therefore, taking into consideration the gravity and severity of the offence under the PMLA, mandatory compliance with the requirements of Section 45 (1) must always be ensured; (g) In view of Section 65, read with Section 71 of the PMLA, the provisions of the PMLA will have an overriding effect over the provisions of the CrPC; and (h) In none of these cases, the conditions incorporated under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be (a) a summonscase, he shall issue his summons for the attendance of the accused, or (b) a warrantcase, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction. (2) No summons or warrant shall be issued against the accused under subsection (1) until a list of the prosecution witnesses has been filed. (3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under subsection (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87. ( emphasis added ) 7. As the punishment for an offence punishable under Section 4 of the PMLA is of impr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the above decision will apply to a complaint under Section 44(1)(b). 8. While taking cognizance on a complaint under Section 44 (1)(b), if the Court finds that till the filing of the complaint, the accused was not arrested, generally at the first instance, as a rule, the Court must issue a summons on the complaint. If the accused was not arrested till the filing of the complaint but has not cooperated with the investigation by defying summons issued under Section 50 of the PMLA, the Special Court may issue a bailable warrant at the first instance while issuing the process. But even in such a case, it is not mandatory to issue a warrant while issuing process; instead issuance of a summons would suffice. When an accused is on bail, while issuing the process, the Special Court will have to issue only a summons. When the accused is granted bail in the same case, it is not necessary to arrest him after taking cognizance. If such an accused does not remain present after service of summons without seeking an exemption, the Special Court can always issue a warrant to secure his presence. 9. Section 61 of the CrPC provides for the form of summons. Form No. 1 in the 2nd Schedule is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n years: Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this subsection without giving an opportunity of hearing to the Public Prosecutor. ( emphasis added ) On its plain reading, subSection (1) of Section 437 does not apply when an accused appears or is brought before a High Court or Sessions Court. A Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent therewith contained in any other law for the time being in force. After carefully perusing the provisions of the PMLA, we find that there is no provision therein which is in any manner inconsistent with Section 205 of the CrPC. Hence, it will apply to a complaint under the PMLA. A summons is issued on a complaint to ensure attendance of the accused before the Criminal Court. If an accused is in custody, no occasion arises for a Court to dispense with the personal attendance of the accused. We may note here that Section 205 empowers the Court to grant exemption only when a summons is issued. Subsection (2) of Section 205 provides for enforcing the attendance of the accused before the Court at the time of the trial. If the accused who appears pursuant to the summons issued on a complaint were deemed to be in custody, the lawmakers would not have provided for Section 205. Hence, we reject the argument of the learned ASG that once an accused appears before the Special Court on a summons being served to him, he shall be deemed to be in custody. 12. Now, we come to Section 88 of the CrPC. Section 88 reads thus: 88. Power to take bond for appearance. When any person for whose a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts powers to take bonds under Section 88 from the accused to ensure his appearance before the Court. Therefore, when an accused appears before the Special Court under a summons issued on the complaint, if he offers to submit bonds in terms of Section 88, there is no reason for the Special Court to refuse or decline to accept the bonds. Executing a bond will aid the Special Court in procuring the accused's presence during the trial. 14. A decision of this Court in the case of Pankaj Jain v. Union of India and Anr. (2018) 5 SCC 743; [2018] 9 SCR 248 had an occasion to deal with the issue. The occasion to consider the provision of Section 88 was the word may used in the Section. We may conveniently reproduce paragraphs 21 and 22 of the said decision, which reads thus: 21. This Court in State of Kerala v. Kandath Distilleries [State of Kerala v. Kandath Distilleries, (2013) 6 SCC 573] came to consider the use of expression may in the Kerala Abkari Act, 1902. The Court held that the expression conferred discretionary power on the Commissioner and power is not coupled with duty. Following observation has been made in para 29: (SCC p. 584) 29. Section 14 uses the expression Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch bond, would be necessarily governed by Section 88 CrPC read with Section 65 of PMLA. Section 88 CrPC reads as follows: 88. Power to take bond for appearance. When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial. This Section 88 (corresponding to Section 91 CrPC, 1898) would not apply qua a person whose appearance is not on his volition, but is brought in custody by the authorities as held by the Constitution Bench of the Hon'ble Supreme Court in Madhu Limaye v. Ved Murti [Madhu Limaye v. Ved Murti, (1970) 3 SCC 739] , wherein it was observed that: (SCC p. 745, para 17) 17. In fact Section 91 applies to a person who is present in court and is free because it speaks of his being bound over, to appear on another day before the court. That shows that the person must be a free agent whether to appear or not. If the person is already under arrest and in custody, as were the petitioners, their appearance d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no question of granting him bail. Moreover, even if the accused who appears before the Court does not offer to submit bonds under Section 88 of the CrPC, the Court can always direct him to do so. A bond furnished according to Section 88 is an undertaking to appear before the Court on the date fixed. The question of filing bail bonds arises only when the Court grants bail. When an accused furnishes a bond in accordance with Section 88 of the CrPC for appearance before a Criminal Court, he agrees and undertakes to appear before the Criminal Court regularly and punctually and on his default, he agrees to pay the amount mentioned in the bond. Section 441 of the CrPC deals with a bond to be furnished by an accused when released on bail. Therefore, in our considered view, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail. 16. Now, we deal with a contingency where after service of summons issued on a complaint under the PMLA, the accused does not appear. One category of such cases can be where the accused appears on the returnable date of the summons and subsequently does not appear, notwithstanding the furnishing of bonds under Section 88. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted. When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail. Hence, Section 45(1) will have no application to such an application. 19. At this stage, we may refer to a decision of this Court in the case of Satender Kumar Antil3. While dealing with Sections 88, 170, 204, and 209 of the CrPC, in paragraphs 100.5, this Court held thus: 100.5. There need not be any insistence of a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code. At this stage, we may note here that from paragraphs 86 to 89 of the same decision, this Court dealt with category of special acts. In paragraph 89, this Court held thus: 89. We may clarify on on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nteed by Article 21 of the Constitution of India. If the ED wants custody of the accused who appears after service of summons for conducting further investigation in the same offence, the ED will have to seek custody of the accused by applying to the Special Court. After hearing the accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44(1)(b), provided the requirements of Section 19 are fulfilled. ON FACTUAL ASPECTS OF THE APPEALS 22. Coming back to the facts of the cases before us, warrants were issued to the appellants as they did not appear before the Special Court after the service of summons. As held earlier, the appellants could have applied for cancellation of warrants issued against them as the warrants were issued only to secure their presence before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused who is not in custody to appear before the Court on the date fixed. Thus, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail; g) In a case where the accused has furnished bonds under Section 88 of the CrPC, if he fails to appear on subsequent dates, the Special Court has the powers under Section 89 read with Sections 70 of the CrPC to issue a warrant directing that the accused shall be arrested and produced before the Special Court; If such a warrant is issued, it will always be open for the accused to apply for cancellation of the warrant by giving an undertaking to the Special Court to appear before the said Court on all the dates fixed by it. While cancelling the warrant, the Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted. When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll file an undertaking before the Special Court that they shall regularly and punctually appear before the Special Court on the dates fixed unless their appearance is specifically exempted by the exercise of powers under Section 205 of the CrPC; and ii. The appellants shall furnish bonds in accordance with Section 88 of the CrPC to the satisfaction of the Special Court within one month from today. c) It is necessary to clarify that the warrants issued against the appellants shall be cancelled only if they make compliance as aforesaid within one month from today. To enable them to do so, the warrants shall not be executed against them for a period of one month from today; d) On the failure of the appellants to appear before the Special Court and to file undertakings and bonds within one month from today, it will be open for the Special Courts to issue warrants against the appellants; and e) After the warrants issued against the appellants are cancelled, the apprehension that they may be arrested will not survive. Hence, in view of what we have held in this judgment, it is unnecessary to consider the prayer for the grant of anticipatory bail. 26. The appeals are allowed on the above ..... 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