TMI Blog2015 (8) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... e observing that order was obtained by the respondents by misrepresenting and suppression of vital facts. Out of 89 accused persons and entities, all are on bail except eight or nine, including the petitioner. If about 80 out of 89 accused are ordered to join investigation under protection of Court orders, present petitioner who had already undergone about 11 months is entitled to the interim relief prayed by him. The petitioner is ordered to be released till the final decision of this petition, subject to his furnishing a personal bond in the sum of ₹ 50,000/- (Rupees Fifty Thousand only) with one surety of the like amount to the satisfaction of the Special Court and on observing other general conditions as well as condition that he will not leave country without prior permission of the trial Court. However, on a request made by the learned advocate, the petitioner may furnish surety in cash and cash surety will be replaced by solvent surety within a period of 15 days. - SPECIAL CRIMINAL APPLICATION (HABEAS CORPUS) NO. 4247 of 2015 - - - Dated:- 3-8-2015 - MR.JUSTICE MOHINDER PAL and MR.JUSTICE R.D.KOTHARI MR VIKRAM CHAUDHARY, SR. ADVOCATE with MR HARDIK MODH, AD ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of fundamental rights, but the same was permitted to be withdrawn vide common order dated 07.07.2015 while observing that withdrawal of the writ petition will not come in the way of any other writ petition that is already pending or that may be filed by the petitioner. In view of this order of the Supreme Court, petitioner preferred this petition with categorical stand that the earlier writ petition was filed before this Court and secondly liberty was granted by the Supreme Court to file this fresh petition vide order dated 07.07.2015. 2. After notice of Rule, respondent Department has filed counter-affidavit wherein issue of maintainability of the second habeas corpus petition was raised. In view of the objection of maintainability raised by the respondent authority and because of two orders dated 12.5.2015 and 07.07.2015 of the Supreme Court, this Court, vide order dated 24.7.2015, prima facie, has found it suitable to ask the petitioner to seek clarification from the Supreme Court regarding maintainability of the petition. Vide order dated 31.7.2015 passed in Special Leave Petition (Crfi.) No.6053 of 2015 against our order dated 24.7.2015, Hon ble Supreme Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, misleading heading refers only a private company company in liquidation. Although the said section was amended by substitution with effect from 01.10.1975, however the heading remained unaltered. In such identical situation, the Allahabad High Court in matter of Roop Chandra Sharma v. Deputy Commissioner of Income Tax (Assessment) reported in 1998 (22 ITR 570 (All.), has held that notwithstanding misleading heading of section 179, it must be held that directors of a private company, though not under liquidation, may be liable for dues outstanding against the company. This view was taken following decision of the Bombay High Court in Union of India v. Manik Dattatreya Lotlikar reported in 1998 (172 ITR 1 (Bom.). It has been contended that misleading heading showing the offence as cognizable after amendment in 2005 by necessary implication of offence under PMLA is not cognizable offence. It is further submitted that neither can the heading govern the amendment nor can interpretation process the fact of amendment whittled down to still construe the offence as cognizable . He submits that since the offence is non-cognizable and there is no corresponding provision under PMLA o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er ground that arrest and continued custody based solely on statements allegedly recorded under section 50 of PMLA are inadmissible and hence the petitioner is entitled for release as prayed for. In this context, learned counsel has submitted as under: (i) An investigating officer under penal statute of PMLA exercises all police powers and is thus a police officer for all purposes, including for the purpose of sections 25 26 of the Evidence Act. While relying on judgment of the Supreme Court in Tofan Singh v. State of Tamil Nadu reported in (2013) 16 SCC 31, wherein after accepting similar contention in respect of statements recorded under NDPS Act, the Hon ble Supreme Court, while suspending the sentence, was pleased to refer the matter for consideration by a Larger Bench in view of earlier conflicting judgments and the reference is since pending before the Supreme Court. (ii) It is further argued that self-incriminatory statements of a persons after his arrest are inadmissible and hit by Art.20(3) of the Constitution of India. Self-incriminatory statements of the petitioner were recorded after his arrest and were retracted on first available opportunity. He has referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper and in violation of his fundamental right guaranteed under Articles 14, 20 21 of the Constitution of India. 8. On the other hand, learned Assistant Solicitor General appearing for the respondent has opposed grant of any relief to the petitioner, interim or otherwise. It is submitted that the present petition was misconceived and not maintainable. According to learned Assistant Solicitor General, the issues raised in this petition are frivolous and without any merits. Earlier bail application preferred by the petitioner has been rejected by the trial Court, by this Court and thereafter by the Supreme Court. 9. It has been submitted that earlier a petition being Special Criminal Application No.4496 of 2014 was filed praying for various reliefs which included the relief praying for a writ of habeas corpus as is sought to be prayed in the present petition with regard to arrest and continuation in custody pursuant to his arrest on 01.9.2014. The reliefs prayed in the present petition and the reliefs prayed in the earlier petition are the same. It is submitted that this Court, while considering the earlier petition for the very same reliefs along with other reliefs that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility raised on behalf of the respondents and in view of two orders dated 12.5.2015 and 07.07.2015 of the Hon ble Supreme Court, we vide our order dated 24.7.2015 prima facie found it suitable to ask the petitioner to seek clarification from the Supreme Court. Vide order dated 31.7.2015 passed in Special Leave Petition (Cri.) No.6053 of 2015 against our order dated 24.7.2015, the Hon ble Supreme Court has clarified the issue by passing the order that: ....We request the High Court to decide the writ petition [ Special Criminal Application (Habeas Corpus) ] pending before it, on merits..... 14. In view of the specific clarification and in light of our earlier order dated 24.7.2015, there can be no impediment in considering the instant petition on merits. Moreover, in context of habeas corpus writ petition, the Hon ble Supreme Court in Sri Kant v. District Magistrate, Bijapur reported in (2007) 1 SCC 486, after considering a Constitution Bench judgment in Ghulam Sarwar v. Union of India reported in AIR 1967 SC 1335 and various other judgments on this issue, held as follows in para 7 8: 7. ....In the said case reference was also made to the earlier decision in Gulam Sarw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zable case or commit the same for trial within the terms of section 155 (I2) of the Code, subject to section 155 (3) of the Code..... 17. In para 102 of the said judgment, Hon ble Supreme Court was further pleased to set out some illustrations where Courts can exercise power under section 482 of the Code or under Article 226 of the Constitution for even quashing criminal proceedings. Such illustration specified in para 102 is as follows: 102. (4) .Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. .... 18. Thereafter, the matter of Lalita Kumari v. Government of U.P. reported in (2014) 2 SCC 1 considered importance of following the procedure prescribed under the Code and observed as follows: 86. Therefore, conducting an investigation into an offence after registration of FIR under section 154 of the Code is the procedure established by law and, thus, is in conformity with Art.21 of the Constitution. Accordingly, the right of the accused under Art.21 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove, we find, prima facie, that the investigation was neither commenced nor progressed in accordance with the procedure established by law. The arrest and continued custody is, therefore, prima facie, in violation of Article 21 of the Constitution of India. Constitution Bench of the Supreme Court in relation to compliance with the procedural safeguard observed in same terms in State of Punjab v. Baldev Singh reported in (1999) 6 SCC 172. 22. In this regard, prima facie, we are of the view that section 45 of PMLA does not override the provisions of Article 21 of the Constitution of India. When violation of the provisions of Art.21 of the Constitution is established, rigors of section 45 will have no application. We cannot condone the serious procedural lapses violating fundamental right guaranteed under Art.21 of the Constitution. For ready reference, Art.21 is reproduced as under: Art.21 No person shall be deprived of his life or personal liberty except according to procedure established by law. 23. Article 21 provides an embargo on deprivation of personal liberty except according to the procedure established by law. The object of Art.21 is to prevent encroachment upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of section 25 of the Evidence Act viz. The influence or authority that an officer is capable of exercising over a person from whom a confession is obtained. ....... 27. Hon ble Supreme Court relied upon a judgment of three- Judge bench decision in State of Punjab v. Barkat Ram reported in AIR 1962 SC 276 in which it was observed that: 33. ......It is, therefore, clear that section 25 of the Evidence Act was enacted to subserve a high purpose and that is to prevent the police from obtaining confessions by force, torture or inducement. The salutary principle underlying the section would apply equally to other officers, by whatever designation they may be known, who have the power and duty to detect and investigate into crimes and is for that purpose in a position to extract confession from the accused..... 28. We, therefore, find prima facie force in the submissions of learned counsel appearing for the petitioner. However, we do not wish to say any further in this regard at this stage and find it appropriate to await judgment of the Supreme Court in reference already made. So far as the statements recorded under PMLA after arrest are concerned, we concur with the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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