TMI Blog2017 (9) TMI 852X X X X Extracts X X X X X X X X Extracts X X X X ..... urt to be careful while dealing with such matters which concern the liberty of an individual. Such remands, in the name/garb of further investigation, cannot be continued for perpetuity as it would militate against the spirit of the procedural laws enacted for the purposes of giving specific time lines for the investigation of a case and commencement of the trial. Any mechanical order of remand, then, cannot be countenanced. It is, however, again made clear that this Court has not gone into the merits of the case so far as the petitioner is concerned and, therefore, the petitioner would be at liberty to approach the Special Court, PMLA for grant of bail on individual merits of his case. This bail application has only been considered with regard to the legality of the remand of the accused in either E.D custody or judicial custody. - BAIL APPLN.1165/2017 - - - Dated:- 14-9-2017 - MR ASHUTOSH KUMAR J. Advocates who appeared in this case: For the Petitioner: Mr. Mukul Rohatgi Mr. Vikram Chaudhri, Sr. Advocates with Mr. Sanjay Agarwal, Mr. Arjun Malik, Mr. Ashish Batra, Mr. Sameer Rohatgi Mr. Harshit Sethi. For the Respondent: Mr. Sanjay Jain, ASG with Mr. Ajay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under the PMLA. 8. It has been submitted on behalf of the petitioner that the arrest, in itself, was unwarranted as the petitioner had joined investigation and had been appearing before the investigating agency/E.D regularly. He was arrested without obtaining any warrant under Section 155(3) of the Cr.P.C and without recording and forwarding of any FIR as required under Sections 154 and 157 of the Cr.P.C. 9. The petitioner was thereafter produced before the Special Court PMLA, on 06.06.2017. 10. An application was filed on behalf of the E.D, seeking 14 days custody remand of the petitioner. It was asserted by the E.D that from the investigations, it revealed that accused persons had conspired to convert demonetized currency into monetized currency by depositing demonetized currency in banks and thereafter obtaining demand drafts in fictitious names. With respect to the petitioner, it was stated that he had roped in other accused persons and had personally supervised the collection, transportation and deposit of illegal/demonetized currency in bank accounts. The petitioner was also alleged to have made attempts to frustrate the PMLA investigation by asking the sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuously remanded by the Special Court, PMLA to E.D custody for specific duration. The petitioner was lastly, remanded to E.D custody for 14 days till 08.08.2017. 19. It has been stated that since the maximum period of investigation in this case, which would be 60 days, was to be completed on 04.08.2017, the E.D, in order to preclude the petitioner from taking advantage of the statutory bail under Section 167 (2) of the Cr.P.C, 1973, submitted the prosecution/complaint qua the petitioner and one Ramesh Chand Sharma on 02.08.2017 i.e only two days prior to the petitioner completing 60 days in custody. Along with the aforesaid prosecution/complaint under Section 44 of the PMLA, a prayer was made before the Court to take cognizance of the complaint and to proceed against the petitioner and another for the offence of money laundering under Section 3 punishable under Section 4 of the PMLA and punish them accordingly 20. The order of the Special Court, on submission of the prosecution/complaint as against the petitioner, which has been quoted in the additional affidavit filed on behalf of the petitioner, is as follows:- The IO has filed supplementary chargesheet/ prosecution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. It has been argued on behalf of the petitioner that, in the first instance, when the petitioner was arrested under the provisions of sub clause (3) of Section 19 of the PMLA, he was first required to be taken to a Judicial Magistrate or a Metropolitan Magistrate having jurisdiction, within a period of 24 hours after excluding the time necessary for journey from the place of arrest to the Magistrate s Court. Instead of taking him to the Magistrate, the petitioner was straightaway brought to the Special Court. By that time, no complaint had been lodged under Section 44 of the PMLA as against the petitioner. It has then been submitted that even if it is assumed that the investigation in the concerned ECIR was continuing and the Special Court had the power of remand under Section 167 of the Cr.P.C, the remand of the petitioner could not have been for not more than 15 days and ultimately for not more than 60 days. 26. In the present case, the maximum number of days for which the petitioner could have been detained during investigation is 60 days. It has also been argued that only to prevent and thwart the prospects of the petitioner from being released on statutory bail that hurri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nizance stage, Mr.Jain submitted that cognizance of the offence is taken once and is always taken of the offences and not of the offenders. Once cognizance was taken on 25.02.2017 against other co-accused persons and the prosecution/complaint against the petitioner was tagged with the earlier complaint, the Special Court would be deemed to have taken cognizance as against the petitioner as well. 31. With respect to the contention of the petitioner that the order of remand, on a couple of occasions had been signed by the Reader and not the Presiding Officer of the Court, it has been submitted that such aberration is only an irregularity, which though cannot be defended but would not entitle the prosecution case to be thrown out or the petitioner to be released or granted bail. 32. In order to appreciate the contentions of the parties, it would be relevant to examine the relevant provisions of the PMLA, 2002 and the Code of Criminal Procedure, 1973. 33. Section 3 of the PMLA defines the offence of money laundering. Section 4 provides for punishment for money laundering. The sections read as hereunder:- 3. Offence of money-laundering.- Whosoever directly or indirectly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or]; (b) a Special Court may, [upon perusal of police report of the facts which constitute an offence under this Act or] upon a complaint made by an authority authorised in this behalf under this Act take [cognizance of offence under section 3, without the accused being committed to it for trial]; (Emphasis provided) (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Court dealing with the offences under the PMLA. 41. Thus, during the course of investigation and prior to the filing of the complaint under Section 44 of the PMLA, the provisions of Sections 167 and 173 of the Cr.P.C would be applicable which deal with the procedure when investigation cannot be completed in 24 hours and the procedure on completion of investigation. Needless to state here that the prosecution/complaint referred to in Section 44 of the PMLA is akin to a report under Section 173 in as much as a report under Section 173 of the Code of Criminal Procedure is submitted after the investigation is completed. So is the prosecution/complaint under Section 44 of the PMLA. After the filing of the predicate offences and registration of the ECIR, investigations are held and the prosecution/complaint under Section 44 is only a culmination of the investigation. It would be necessary in this context to examine the relevant provisions of Sections 167 and 173 of the Cr.P.C, 1973. They read as hereunder:- 167. Procedure when investigation cannot be completed in twenty-four hours .- (1) Whenever any person is arrested and detained in custody, and it appears that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. (2A) Notwithstanding anything contained in subsection (1) or sub-section (2), the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of a sub inspector, may, where a Judi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify. 173. Report of police officer on completion of investigation.-( 1) Every investigation under this Chapter shall be completed without unnecessary delay. (1A) The investigation in relation to rape of a child may be completed within three months from the date on which the information was recorded by the officer in charge of the police station. (2) (i) As soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, stating- (a) the names of the parties; (b) the nature of the information; (c) the names of the persons who appear to be acquainted with the circumstances of the case; (d) whether any offence appears to have been committed and, if so, by whom; (e) whether the accused has been arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an offence after a report under sub-section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed; and the provisions of sub-sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2). 42. Under the Cr.P.C, 1973, after a person is arrested in connection with investigation of a case and the investigation with respect to the offence cannot be completed within a period of 24 hours as mandated by Section 57 of the Code of Criminal Procedure, the accused shall be forwarded to a Magistrate who may or may not have the jurisdiction to try the case and who shall authorize the detention of the accused in custody for a term not exceeding 15 days in the whole in one go and not more than 90 days if the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of less than 10 years and 60 days where the investigation rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... til the conclusion of, the trial; (c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence; (d) notify the Public Prosecutor of the commitment of the case to the Court of Session. 45. Section 173 of the Cr.P.C provides that as soon as the investigation is completed, a report in the prescribed form shall be filed. However, there is a provision for further investigation under Section 173(8) which permits the investigating agency to conduct further investigation even after a report has been submitted to the Magistrate under sub Section (2) of Section 173. After the further investigation, the report has also to be submitted to the Magistrate. 46. On submission of report under Section 173 of the Code of Criminal Procedure, a Magistrate takes cognizance of the offence under Section 190 of the Cr.P.C. Under certain circumstances a Sessions Court also takes cognizance of the offence under Section 193 of the Cr.P.C as a Court of original jurisdiction but only when the case has been committed to it by a Magistrate under the Code. 47. After cognizance is taken, the case has to be tried on day to day basis unle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-inchief or cross-examination of the witness, as the case may be. Explanation 1.- If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. 48. Thus, for all practical purposes, on the filing of the prosecution/complaint under Section 44 of the PMLA and after cognizance of the offence and framing of the charges, the trial commences. In that case, if the trial cannot be held on a day to day basis, the proceedings can be adjourned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or mystic significance in criminal law or procedure. It merely means-become aware of and when used with reference to a court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. Emperor [AIR 1043 Patna 245] by the learned Judges of the Patna High Court in a passage quoted with approval by this Court in R.R. Chari v. State of Uttar Pradesh [(1951) SCR 312 at p 320] that the word cognizance was used in the Code to indicate the point when the Magistrate or Judge takes judicial notice of an offence and that it was a word of indefinite import, and is not perhaps always used in exactly the same sense. As observed in Emperor v. Sourindra Mohan Chuekorbutty, [ILR 37 Cal 412 at p 416] taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence . Where the statute proscribes the materials on which alone the judicial mind shall operate before any step is taken, obviously the statutory requirement must be fulfilled. Thus, a Sessions Judge cannot exercise that original jurisdiction which Magistrates specified in Section 190(1) can, bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own knowledge, that an offence has been committed. These are the three grounds on the basis of which a Magistrate can take cognizance and decide to act accordingly. It would further appear that this Court in the case of Narayandas Bhagwandas Madhavdas v. State of West Bengal [AIR 1959 SC 1118 : (1960) 1 SCR 93, 106 : 1959 Cri LJ 1368] observed the mode in which a Magistrate could take cognizance of an offence and observed as follows: It seems to me clear however that before it can be said that any Magistrate has taken cognizance of any offence under Section 190(1)(a), Criminal Procedure Code. he must not only have applied his mind to the contents of the petition but must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter - proceeding under Section 200 and thereafter sending it for inquiry and report under Section 202. 54. Similarly, in Anil Saran vs. State of Bihar and Another, (1995) 6 SCC 142 , the Supreme Court has held as follows:- 5. We find no force in the contention. Though the Code defines cognizable offence and non-cognizable offence , the word cognizance has not been defined in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the word cognizance . The very first Section in the said Chapter, viz., Section 190 lays down how cognizance of offences will be taken by a Magistrate. However, the word cognizance has not been defined in the Code of Criminal Procedure. The dictionary meaning of the word cognizance is - 'judicial hearing of a matter'. The meaning of the word has been explained by judicial pronouncements and it has acquired a definite connotation. The earliest decision of this Court on the point is R.R. Chari v. State of U.P. MANU/SC/0025/1951 : 1951CriLJ775 , wherein it was held: Taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. In Darshan Singh Ram Kishan v. State of Maharashtra MANU/SC/0089/1971: 1971CriLJ1697 , while considering Section 190 of the Code of 1908, it was observed that taking cognizance does not involve any formal action or indeed action of any kind but occurs as soon as a Magistrate as such applies his mind to the suspected commission of an offence. Cognizance, therefore, takes place at a point when a magistrate first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates the point when a Magistrate or a Judge first takes judicial notice of an offence. It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. 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 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. 56. Thus what can be gleaned from the aforementioned decisions is that the term cognizance may not have been defined in the Cr.P.C but it has a clear and definite meaning and connotation as derived from various judicial precedents. Simply speaking, cognizance is taking judicial notice by a Court of law, possessing jurisdiction, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zance has been taken in a case, for the investigating agency to continue with the further investigation. 61. Looking at the successive orders of remand by the Special Court, it becomes very clear that the Special Court has applied its mind. The prosecution/complaint lodged on 02.08.2017 against the petitioner was tagged with the main prosecution/complaint against the other accused persons in which cognizance has been taken. The orders further reveal that the pros and cons of the request for remand by the E.D was analyzed and then only the order was passed. Thus when the petitioner was remanded to custody by a Special Court after the lodging of the prosecution/complaint on 02.08.2017, it was only a remand for the purposes of further investigation. Precisely for this reason, post lodging of the complaint (i.e. 02.08.2017) the remand is to judicial custody and not to the E.D custody. 62. Section 173(8) of the Cr.P.C permits further investigation in respect of an offence even after a report under Section 173(2) has been forwarded to a Magistrate. 63. In H .N.Rishbud vs. State of Delhi, AIR 1955 SC 196 , the Supreme Court dealt with the definition of investigation under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... single enquiry or trial. If the case of which he has previously taken cognizance has already proceeded to some extent, he may take fresh cognizance of the offence disclosed against the newly involved accused and proceed with the case as a separate case. What action a Magistrate is to take in accordance with the provisions of the Code of Criminal Procedure in such situations is a matter best left to the discretion of the Magistrate. (Emphasis provided by this Court) 65. Thus, on a perusal of the provisions contained in Section 173(8) and 309(2), there is nothing to suggest that after cognizance of an offence is taken, an accused cannot be detained/remanded. 66. Section 309 relates to the power of Court to postpone the commencement or adjournment of an enquiry or trial. 67. In State through CBI vs. Dawood Ibrahim Kaskar Ors, (2000) 10 SCC 438 , the Supreme Court has stated as hereunder:- 11. There cannot be any manner of doubt that the remand and the custody referred to in the first proviso to the above sub-section are different from detention in custody under Section 167. While remand under the former relates to a stage after cognizance and can only be to j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 220 : 1975 SCC (Cri) 484 : 1975 Supp SCR 137 ] .) The power must, therefore, be traced to some provision of the statute . 69. In Suresh Kumar Bhikamchand Jain vs. State of Maharashtra, (2013) 3 SCC 77 , the Supreme Court has held as under:- 18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Cr.P.C is concerned. The right which may have accrued to the petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been obtained to prosecute the accused and to proceed to the stage of Section 309 Cr.P.C, it cannot be said that the accused is entitled to grant of statutory bail, as envisaged in Section 167 Cr.P.C. The scheme of Cr.P.C is such that once the investigation stage is completed, the court proceeds to the next stage, which is the taking of cognizance an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was pending. 72. In the meantime, on completion of 60 days of his arrest, a prayer for statutory bail under Section 167(2) was made by him on the ground that no chargesheet in terms of Section 173(8) had been filed. When this application was pending consideration, the CBI sought his remand under Section 309(2). The prayer of the statutory bail was rejected. In revision, the Sessions Court allowed the statutory bail on the ground that since the remand was being sought under Section 167 then, no further remand could be made under Section 309(2). As against the aforesaid order, the CBI had moved the High Court. The High Court overturned the decision of the Sessions Court. The matter ultimately travelled to the Supreme Court. 73. The Supreme Court in Dinesh Dalmia (Supra) held as hereunder:- 19. A charge-sheet is a final report within the meaning of sub-section (2) of Section 173 of the Code. It is filed so as to enable the court concerned to apply its mind as to whether cognizance of the offence thereupon should be taken or not. The report is ordinarily filed in the form prescribed therefor. One of the requirements for submission of a police report is whether any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em. On the presentation of the prosecution/complaint on 02.08.2017 qua the petitioner and another, the complaint was tagged along with the main complaint. This would obviously mean that the cognizance of the offence has been taken against the petitioner as well. Though there is no specific order stating that cognizance has been taken against the petitioner for the aforesaid offence but the manner in which the petitioner was remanded to either E.D custody or judicial custody reflects an application of mind of the learned Special Judge. After the lodging of the prosecution/complaint on 02.08.2017, the petitioner has been remanded, therefore, under the provisions of Section 309 of the Cr.P.C. Such a remand is for the purposes of further investigation under Section 173(8) of the Cr.P.C. Thus, there does not appear to be any infraction of the provisions of either the PMLA or the Cr.P.C so far as the remand is concerned. 75. However, this Court is pained to record that either under the provisions of Section 167 or under Section 309 of the Cr.P.C, the petitioner could not have been remanded for more than 15 days in one go. If this has been done by the Special Court, it is severely depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e different. The petitioner had earlier been remanded to custody with specific endorsement. However, for the fault of the Court, the prosecution cannot be made to suffer. Otherwise also, such departures from the procedure would come within the category of irregularity and not an illegality. 79. This Court has perused the order of remand, though recorded by the Reader which says that the case is adjourned for a particular date for the purpose already fixed. This can, for the purposes of this case, be read as remand till that date . 80. This Court in the aforesaid circumstances feels it necessary to caution the learned Special Court to be careful while dealing with such matters which concern the liberty of an individual. Such remands, in the name/garb of further investigation, cannot be continued for perpetuity as it would militate against the spirit of the procedural laws enacted for the purposes of giving specific time lines for the investigation of a case and commencement of the trial. Any mechanical order of remand, then, cannot be countenanced. 81. It is, however, again made clear that this Court has not gone into the merits of the case so far as the petitioner is conc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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