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Yogesh Mittal Versus Enforcement Directorate

Grant of bail - offence under the Prevention of Money Laundering Act, 2002 - petitioner, without approaching the Special Court under the PMLAct, 2002 for grant of bail, has preferred the present petition seeking bail in on the ground that his remand in judicial custody is illegal and without any jurisdiction of the learned Special Court to remand the petitioner any further after the presentation of the prosecution under Section 44 of the PMLA - Held that:- The petitioner had earlier been rem .....

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is 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, can .....

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MAR 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 Digpaul, CGSC, Mr. Amit Mahajan, CGSC, Mr. Vinod Diwakar, CGSC, Mr. Kartik Rai, Ms. Mohita, Ms. Adrija Thakur & Mr. Kunal Dutt, Advocates. JUDGMENT ASHUTOSH KUMAR, J 1. The petitioner, without approaching the Speci .....

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time, when this bail application was filed (i.e. on 15.06.2017), the petitioner had been remanded to E.D custody by the Special Court, PMLA, but no prosecution/complaint was filed qua the petitioner in the Special Court. As such, it was not possible for the petitioner to approach the Special Court, PMLA for bail. The Special Court, PMLA had no record of the petitioner till that time. The prosecution/complaint was filed only on 02.08.2017 during the pendency of this bail application. 3. Mr. Mukul .....

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for grant of bail on account of infraction of statutory provisions, this petition is being entertained. 5. Certain interesting aspects have been revealed while hearing the present bail application. 6.The petitioner was arrested by the Assistant Director, PMLA, Delhi zonal office, Zone-2, Enforcement Directorate, MTNL Building, Jawaharlal Nehru Marg, New Delhi on 05.06.2017, purportedly in exercise of powers conferred under sub Section (1) of Section 19 of the PMLA. 7. The petitioner was made to .....

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arding 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 dra .....

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11. It may be stated here that the investigations in the present case was taken up, pursuant to registration of FIR No.205/2016 dated 25.12.2016 under various sections of the Indian Penal Code against co-accused persons, by the Crime Branch, Delhi Police. The E.D, thereafter, registered ECIR No. 18/DZO-8/2016 dated 26.12.2016 for investigation of the offence of money laundering. 12. On such application by the E.D seeking custody remand of the petitioner, the Special Court, PMLA, was of the view .....

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016 (predicate offence) on 25.12.2016 and registration of ECIR in question on 26.12.2016, co accused Ashish Kumar, Rohit Tandon and Rajkumar Goel were arrested and produced before the Special Court, PMLA and were remanded to E.D custody as and when requested by the E.D. 14. On 23.02.2017 prosecution/complaint under Section 44 of the PMLA was filed before the Special Court against Rohit Tandon, Ashish Kumar, Rajkumar Goel, Dinesh Bhola and Kamal Jain. 15. On 25.02.2017, the Special Court took cog .....

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gesheet in FIR No.205/2016 before the Court of learned Additional Sessions Judge/Special Court, P.C.Act at Tis Hazari Courts, Delhi against the aforesaid accused persons. 18. The petitioner, in the meantime was being continuously 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 b .....

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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 complaint qua accused Yogesh Mittal and Ramesh Chandra Sharma. The supplementary chargeshee .....

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the case of the petitioner on the same date i.e. 11.08.2017 and remanded the petitioner to judicial custody till 11.08.2017. It has been submitted that in the application seeking remand of the petitioner to judicial custody till 11.08.2017 on 08.08.2017, it was stated by the E.D that the investigation under the PMLA in this case is in progress and passing through critical stage where it is certain that new facts and evidences would come on record and that would be required to be interrogated fro .....

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der:- 11.8.2017 Ld. P.O is on leave for today. Sh. Vikas Garg, SPP for ED. Accused Rohit Tandon, Raj Kumar Goel, Yogesh Mittal and Ashish Kumar are present from J/C. Accused Dinesh Bhola and Kamal Jain are present on bail with their Counsel. Put up on 31.08.2017 for purpose already fixed. Reader/ 11.08.2017 23. The order dated 11.08.2017 was, therefore, not passed by the Presiding Officer but by the Reader of the Court. It has also been pointed out that the order does not specifically indicate t .....

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rate 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 p .....

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y the filing of the prosecution/chargesheet and on half baked information, the prosecution/complaint under Section 44 of the PMLA was filed on 02.08.2017 as 60 days of custody would have been completed on 04.08.2017. 27. It has thus been argued that after the filing of the prosecution/complaint under Section 44 of the PMLA as referred to above, the investigation would be deemed to have been completed. In the present case, under this Special Act, prosecution/complaint is in the nature of a report .....

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n remanded either to E.D custody or to judicial custody before taking cognizance of the offence. 28. Till date, it has been asserted, no cognizance has been taken against the petitioner in the present case. 29. Apart from this, it has been argued, after the prosecution/complaint having been filed, the petitioner was being remanded for more than 15 days at one go, which is impermissible in law. Curiously, few of the last orders of remand do not even specify that petitioner or the other accused pe .....

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complaint against the petitioner and another on 02.08.2017, the remand to the E.D custody was under the provisions of Section 167 of the Cr.P.C and after the lodging of the complaint on 02.08.2017, the remand was necessarily under Section 309 of the Cr.P.C. On the aspect of Section 309 being applicable only at the post cognizance 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 25.02.2 .....

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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 indi .....

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ears but which may extend to seven years and shall also be liable to fine: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words which may extend to seven years , the words which may extend to ten years had been substituted. 34. The power of arrest of an accused has been provided in Section 19 of the PMLA which clearly envisages that .....

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keep such order and materials for such period, as may be prescribed. 35. Sub Section (3) of Section 19 further emphasizes that every person arrested under Section 19(1) of the Act, shall within 24 hours, be taken to a Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction and the period of 24 hours shall exclude the time necessary for journey from the place of arrest to the Magistrate s Court. 36. For the purposes of trying offences under the PMLA, Special Courts have .....

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rovided 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 cogniz .....

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r the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) as it applies to a trial before a Court of Session. (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the .....

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itted to it for trial and that the Special Court shall hold trial in accordance with the provisions of Cr.P.C, 1973 as it applies to a trial before a Court of Sessions. Sub clause (2) of Section 44 further clarifies that nothing shall affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrat .....

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al Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. 40. From a conspectus of the aforenoted provisions under the Act, it is clear that the provisions of the Cr.P.C, 1973 would apply to the proceedings before the Special Court dealing with the offences under the PMLA. 41. Thus, during the course of investigation .....

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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. .....

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y hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further .....

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n relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXI .....

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t 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 ma .....

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lice station or the police officer making the investigation, if he is not below the rank of a sub inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, .....

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person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2): Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of .....

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eriod of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. (6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is s .....

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f 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 ac .....

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the Indian Penal Code (45 of 1860)].] (ii) The officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. (3) Where a superior officer of police has been appointed under section 158, the report shall, in any case in which the State Government by general or special order so directs, be submitted through that officer, and he may, pend .....

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relevant extracts thereof on which the prosecution proposes to rely other than those already sent to the Magistrate during investigation; (b) the statements recorded under section 161 of all the persons whom the prosecution proposes to examine as its witnesses. (6) If the police officer is of opinion that any part of any such statement is not relevant to the subject-matter of the proceedings or that its disclosure to the accused is not essential in the interests of justice and is inexpedient in .....

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n 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-secti .....

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e 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 relates to any other offence, if the Magistrate thinks fit. In case the chargesheet is not submitted within the aforesaid period of either 60 days or 90 days depending upon the nature of accusation, it is mandatory that the accused shall be released on bail and such release shall be deemed to be under Chapter X .....

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ng of the prosecution/complaint under Section 44 of the PMLA, can authorize the detention of an accused and keep him remanding in custody, authorizing his detention for 15 days at one go, to a maximum of 60 or 90 days as the case may be. Thereafter, since the prosecution/complaint is in the nature of a report under Section 173, the power of authorizing the detention would only be under Section 309 of the Cr.P.C as there is no commitment proceedings under the PMLA. In cases concerning IPC, there .....

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ted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall- (a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made; (b) subject to the provisions of this .....

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ion 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 cogni .....

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ment of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody. However, the remand shall not be for a term exceeding 15 days at a time. The aforesaid provisions are to be found in Section 309 of the Cr.P.C which is as hereunder:- 309. Power to postpone or adjourn proceedings.-(1) In every inquiry or trial .....

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the date of filing of the charge sheet.] (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to c .....

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arty, except where the circumstances are beyond the control of that party; (b) the fact that the pleader 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 exa .....

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actical 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 and for such time, the accused would be remanded to judicial custody. For the application of Section 309 of the Cr.P.C to the proceedings, it is albeit necessary that cognizance must have been taken of the offence. 49. Under th .....

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During that period also there is a provision of remand of an accused to custody which has been provided under Section 209 of the Cr.P.C. The third provision is the post cognizance stage and which is to be found in Section 309 of the Cr.P.C as stated above. The remand of the petitioner to E.D custody prior to 02.08.2017 when the prosecution/complaint under Section 44 of the Act was filed against the petitioner and another was therefore, permissible under Section 167 of the Cr.P.C. Thereafter, in .....

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g of cognizance in the present case. 52. In Ajit Kumar Palit vs. State of West Bengal and Anr, AIR 1963 SC 765, the Supreme Court had the occasion to deal with Sections 4 & 5 of the West Bengal Criminal Law Amendment (Special Courts) Act, 1949. It was held by the Supreme Court in the aforesaid case as follows:- 19. The provisions of Section 190(1) being obviously, and on its own terms, inapplicable, the next question to be considered is whether it is the requirement of any principle of gener .....

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f 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 .....

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t material which must exist before the judicial mind can operate. It appears to us therefore that as soon as a Special Judge receives the orders of allotment of the case passed by the State Government it becomes vested with jurisdiction to try the case and when it receives the record from the Government it can apply its mind and issue notice to the accused and thus start the trial of the proceedings assigned to it by the State Government. 53. Similarly, in Tula Ram and Others vs. Kishore Singh, .....

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R.Chari vs. State of U.P, 1951 SC 207, the Supreme Court had ruled 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. The Supreme Court in Tula Ram and Others (Supra) has held as follows:- It seems to us that there is no special charm or any magical formula in the expression taking cognizance which merely means judicial application of the mind of the Magistra .....

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upon receiving a complaint of facts which constitute such offence; (2) upon a police report of such facts; and (c) upon information received from any person other than the police officer or unon his 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 .....

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- 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 the Code. But it is now settled law that the court takes cognizance of the offence and not the offender. As soon as the Magistr .....

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e in which case is sought to be dealt with or the nature of the action taken by the Magistrate. Under sub-section (1) of Section 190 of the Code, any Magistrate may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. 6. Sub-section (1) of Section 192 has conferred a .....

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with law. The power to take cognizance has been conferred on a Magistrate by Section 190(1) of the Code and he would not be denuded of this power because the case has come to his file pursuant to some illegal order of the Chief Judicial Magistrate. The former would be exercising his power of taking cognizance even in such a case, because of his having received a complaint constituting the offence. It would not be material, for this purpose, as to how he came to receive the complaint - directly o .....

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onary 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 .....

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magistrate takes cognizance of an offence on a complaint, or on a police report, or upon information of a person other than a police officer. In Narayandas Bhagwandas Madhavdas v. The State of West Bengal MANU/SC/0054/1959 : 1959CriLJ1368 it was held 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 proce .....

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the Magistrate takes cognizance once he makes himself fully conscious and aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. The Court then referred to the three situations enumerated in Sub-section (1) of Section 190 upon which a Magistrate could take cognizance. Similar view was expressed in Kishun Singh and Ors. v. State of Bihar MANU/SC/0460/1993 : 1993CriLJ1700 that when the Magistrate takes notice of the accusations and appli .....

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eral sense, it means taking notice of an offence. This would include the intention of initiating judicial proceedings against the offender in respect of that offence and taking steps to see whether there is any basis for initiating judicial proceedings or for other purposes. The word 'cognizance' 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 .....

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ent 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, on a cause .....

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lodged on 02.08.2017 as the complaint against the petitioner was tagged along with the main complaint. The orders of the Special Court, as has been seen earlier, reflect that after application of mind, the petitioner was remanded to E.D custody before the lodging of the complaint on 02.08.2017 and to judicial custody after the lodging of the complaint referred to above. 58. Thus the present remand of the petitioner would be under Section 309 of the Cr.P.C. 59. It has been argued on behalf of the .....

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materials and it should not be an inchoate report, without conclusive finding that an accused/petitioner is required to be tried for such offence. If the investigation was required to be continued, it was absolutely unnecessary for the prosecution to have filed the prosecution/complaint under Section 44 of the PMLA on 02.08.2017. It has been argued that permitting this would amount to giving imprimatur to something which has been done indirectly and which could have been done directly. 60. On t .....

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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 .....

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me Court dealt with the definition of investigation under the Cr.P.C, 1898 which is almost the same as in 1973 Code. In the aforesaid case, it was held as hereunder:- Thus, under the Code investigation consists generally of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence which may consist of (a) the examination of .....

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e of 1898 there was no such express provision like what is available by way of Section 173(8) of Cr.P.C., 1973 but such powers were recognized in Ram Lal Narang vs.State (Delhi Admn.), (1979) 2 SCC 322, wherein the Supreme Court observed as follows:- … It is easy to visualise a case where fresh material may come to light which would implicate persons not previously accused or absolve persons already accused. When it comes to the notice of the investigating agency that a person already acc .....

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igate and submit a report to the Magistrate upon the involvement of the other persons. In either case, it is for the Magistrate to decide upon his future course of action depending upon the stage at which the case is before him. If he has already taken cognizance of the offence, but has not proceeded with the enquiry or trial, he may direct the issue of process to persons freshly discovered to be involved and deal with all the accused in a single enquiry or trial. If the case of which he has pre .....

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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 det .....

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ction 167 thereof would not apply to a person who comes to be later arrested by the police in course of such investigation. If Section 309(2) is to be interpreted - as has been interpreted by the Bombay High Court in Mansuri [From the Judgment and Order dated 1-81996 of the Designated Court for Bomb Blast Cases, Brihat Mumbai in Misc. Applications Nos. 201, 210 and 211 of 1996] - to mean that after the Court takes cognizance of an offence it cannot exercise its power of detention in police custo .....

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ry or trial was being held in respect of him and not to an accused who is subsequently arrested in course of further investigation. So far as the accused in the first category is concerned he can be remanded to judicial custody only in view of Section 309(2), but he who comes under the second category will be governed by Section 167 so long as further investigation continues. That necessarily means that in respect of the latter the Court which had taken cognizance of the offence may exercise its .....

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SCC 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 fili .....

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ant 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 and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Cr.P.C, the Magistrate is vested with authority to remand the .....

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Magistrate till such time as cognizance is taken by the court trying the offence, when the said court assumes custody of the accused for purposes of remand during the trial in terms of Section 309 Cr.P.C. The two stages are different, but one follows the other so as to maintain a continuity of the custody of the accused with a court. (Emphasis provided by this Court) 70. In Dinesh Dalmia vs. CBI, (2007) 8 SCC 770, the CBI had lodged FIR against Mr. Dinesh Dalmia and three companies registered an .....

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hat he may be tried in accordance with law. On such report, cognizance was taken on the basis of the chargesheet. It was noted by the Court that non-bailable warrant of arrest against the appellant was pending. 71. Ultimately, Mr.Dinesh Dalmia was arrested and produced before the Magistrate in Delhi for transit remand to Chennai. When he was produced before the Magistrate at Chennai, an order for police custody was prayed for and was granted for the purposes of brain mapping, polygraph test etc. .....

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tatutory 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 .....

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n that the absconding accused is also a person by whom the offence appears to have been committed. If the investigating officer finds sufficient evidence even against such an accused who had been absconding, in our opinion, law does not require that filing of the charge-sheet must await the arrest of the accused. 20. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of sub-section (8) of Section 173 is not taken away only because a ch .....

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(1995) 6 SCC 142 : 1995 SCC (Cri) 1051] and Popular Muthiah v. State [(2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245] 29. The power of a court to direct remand of an accused either in terms of sub-section (2) of Section 167 of the Code or sub-section (2) of Section 309 thereof will depend on the stages of the trial. Whereas sub-section (2) of Section 167 of the Code would be attracted in a case where cognizance has not been taken, sub-section (2) of Section 309 of the Code would be attracted only aft .....

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inal Procedure. On the presentation of prosecution/complaint against other accused persons under Section 44 of the PMLA, cognizance was taken against them. 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 .....

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e 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 deprecated. The learned Special Court ought to have realized that it can only act according to the provisions of the Cr.P.C and the PMLA, under which the C .....

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) where the matter could be placed before the nearest Court exercising the same powers who could after recording reasons in writing authorize the detention of an accused/petitioner in custody but for a term not exceeding seven days in the aggregate. 76. This Court is at a loss to understand as to how the petitioner was remanded for more than 15 days in one go and the order of remand was permitted to be recorded by the Reader of the Court. 77. Learned advocates appearing for the petitioner has dr .....

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the IPC. In the aforesaid case, there were two remand orders; one passed by the Additional District Magistrate, Delhi and the other passed by the trying Magistrate. The Supreme Court, in the aforesaid case, found that the order of remand by the Magistrate did not have a clear endorsement of those persons having been remanded to judicial custody; rather the order of remand merely intimated that the case was being adjourned for a specific date. The Supreme Court, in that case, was of the view that .....

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