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Yogesh Mittal Versus State of NCT of Delhi

2018 (1) TMI 534 - DELHI HIGH COURT

Continued detention of the Petitioner by denying him the right of default bail under Section 167(2) of CrPC and without formal cognizance taken of the offence committed by him in the said FIR - maintainability of petition - offence under PMLA - Held that:- Here we are concerned in the present case which deals with the life and liberty of a citizen. Therefore, the present petition is maintainable. - In the present case, on 24th June 2017, the competent court, viz. the Special Judge (PC Act) t .....

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developments at every stage. Therefore, the question of his being in continued detention without cognizance being taken of the offence qua him does not arise. This submission of the Petitioner is accordingly negated. - The Court disagrees with the learned Special Judge, PMLA that since the charge sheet had already been filed in a proper Court on 14th October, 2017 i.e. prior to the expiry of 90 days, the Petitioner was not entitled to the statutory bail under Section 167(2) Cr PC. The said .....

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90 days i.e. on or before 16th October, 2017, would entitle the Petitioner to the relief of the statutory bail/default bail under Section 167(2) Cr PC. Accordingly, the Petitioner is directed to be released on bail in FIR No.205/2016, subject to his furnishing a personal bond in the sum of Rs. one lac with one surety of the like amount to the satisfaction of the Special Judge, PMLA with specified conditions. - W.P. (CRL) 3464/2017 & Crl.M.A.No.20399/2017 - Dated:- 9-1-2018 - S. MURALIDHAR & .....

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Article 226 of the Constitution seeks a declaration that the continued detention of the Petitioner in FIR No. 205/2016 by denying him the right of default bail under Section 167(2) of the Code of Criminal Procedure, 1973 ( Cr PC ) and without formal cognizance taken of the offence committed by him in the said FIR is illegal, warranting his release from custody as far as the said FIR is concerned. Background facts 2. The background facts are that the aforementioned FIR No.205/2016, dated 25th Dec .....

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as under: Further investigation is in progress. FSL Report is awaited. If more evidence comes on record against the above accused, same shall be filed before the Hon'ble court through supplementary charge sheet Investigation against Yogesh Mittal and/or his other associates is also in progress and a supplementary charge sheet will be filed against them. 3. It must also be noticed at this stage that, as noted in para 78 of the aforementioned final report, one of the accused in the aforementi .....

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Record is perused. ACP Ishwar Singh submits that CS is being filed today since investigation is complete qua accused persons named in Column No.11 and further investigation is pending against Yogesh Mittal & other persons. He submits that accused person Raj Kr. Goel and Ashish Kumar are in JC in present case. He submits that cognizance may be taken since two of accused persons are in JC and their detention needs to be authorized under Section 309 CrPC. He submits that the Public Servant Ashi .....

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Petitioner was taken into custody on 5th June 2017 by the ED under the PMLA. On 18th July 2017, while he was still in custody in the PMLA case, the Petitioner was remanded to police custody by the Special Judge (PC Act), Anti-Corruption Bureau, Tis Hazari Court, New Delhi. Therefore, the date of arrest of the Petitioner as far as FIR No.205/2016 is concerned was 18th July 2017. 6. In terms of clause (i) of proviso (a) to Section 167(2) Cr PC, a Magistrate may not authorize the detention of an ac .....

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. Kulkarni (1992) 3 SCC 141. The Supreme Court in that case explained that while the police custody could not exceed 15 days, the remaining custody had to be a judicial custody and the total period of custody cannot exceed 90 days. It was observed as under: Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fift .....

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mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on bail as mentioned therein. Application for transfer to PMLA Court 9. As far as the present case is concerned, when the matter was listed before the Special Judge (PC Act) at Tis Hazari Court on 10th October 2017, an application moved by the ED under Section 44(c) PMLA, was taken up for consideration. A request was made by the ED that sinc .....

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ody should be presented before the said Special Judge (PMLA) on 16th October 2017. The accused, who were on interim bail, were asked to remain present before that Court on the date fixed. 10. At that stage, another submission was made by the IO of FIR No.205/2016 which was recorded by the learned Special Judge (PC Act) in the same order dated 10th October 2017 as under: At this stage, IO ACP Ishwar Singh submits that in the present matter, investigation qua another accused Yogesh Mittal is under .....

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in the custody warrants of the accused persons. 11. As it transpired, and as is sought to be explained by the Respondents, the case file was to be sent through the Court of District Judge (HQs), Tis Hazari Courts to the concerned PMLA Court. For this purpose the file was sent to the said District Judge (HQ). This was done by the Special Judge (PC Act) by an order dated 11th October 2017 which reads as under, : On 10.10.2017, an application filed by Sh. Rahul Verma Assistant Directorate of Enforc .....

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place the case file before the learned District & Sessions Judge (HQs), Delhi on 12.10.2017 with a request to send the case file to the Court of Sh. A.K. Kuhar, learned Special Judge (PMLA), Saket Court, New Delhi through District & Sessions Judge (South), Saket Court, New Delhi. 12. On 12th October 2017, the learned District Judge (HQ), Tis Hazari passed the following order: 12.10.2017 Present: None for either of the parties. File has been received from the Court of Ms Hemani Malhotra. .....

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sheet qua the Petitioner herein in FIR No.205/2016. The Investigating Agency also approached the District Judge Court at Saket Court but for some reason the case file had not reached that Court. It is further stated that, on 14th October 2017, since the case file was under administrative transfer process, the Investigating Agency apprised the Special Judge (PC Act), and filed the charge sheet against the present Petitioner as accused in that Court i.e. the court of the Special Judge (PC Act) on .....

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LA at Saket Court, Delhi. Learned District & Sessions Judge (HQs), Delhi has passed the order of placing the file before Learned District & Sessions Judge (South West), Saket Courts, Delhi on 17.10.2017. IO submits that since the main case was not formally assigned to the concerned Court of Sh. A.K.Kuhar, learned special Judge (PMLA), JC remand of accused Yogesh Mittal was not extended yesterday. IO has filed the supplementary charge sheet against the accused today. Learned Addl. PP for .....

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of view of the Petitioner, the 90 day period after his arrest on 18th July 2017 expired on 16th October 2017. On 16th October 2017, the Petitioner filed a bail application before the learned Special Judge (PMLA), Saket Court seeking default bail under Section 167(2) CrPC. According to the Petitioner, the Special Judge (PMLA) was the only competent Court which could take cognizance of the offence. 15. The Petitioner s bail application was taken on board by Special Judge (PMLA) and posted for hear .....

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10 am on 17th October 2017, one hand written application for acceptance of bail bonds was filed on behalf of the Petitioner. 16. It appears that it was only thereafter that the entire case was assigned to the Special Judge (PMLA) by the District Judge, South East, Saket Courts by the order dated 17th October 2017 passed at 2.45 pm, which reads as under: 17.10.2017 (02:45 pm) Present: None. This is supplementary charge sheet received vide order dated 14.10.2017 of District and Session Judge (HQs .....

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ar, learned ASJ-02, South-East, Saket today itself at 03:00 pm with the main charge sheet. In view of orders dated 10.10.2017, 11.10.2017 and 12.10.2017, the trial of this case is assigned to the court of Shri A.K. Kuhar, learned ASJ-02, South-East, Saket, New Delhi for proceeding further in accordance with law. File be sent to the court concerned immediately and both sides shall appear before the learned concerned court of Shri A.K. Kuhar, learned ASJ-02, South-East, Saket today itself i.e. 17. .....

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ober 2017. Findings of the PMLA Court on the Section 167 application 18. On 31st October 2017, an order was passed on a further application by the Petitioner for directions to the Superintendent Central Jail regarding his blood sugar condition. The case was again adjourned to 2 pm on 18th November 2017. On 18th November 2017, the arguments were heard by the learned Special Judge (PMLA) on the Petitioner s application under Section 167 (2) Cr PC. It was asked to be further listed at 2 pm on 30th .....

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ii) Even if the Special Judge (PC Act) had transferred the case by the order dated 10th October 2017 to the Special Judge (PMLA) since the offences for which the FIR No.205/2016 was registered were mentioned to the Schedule of PMLA, the competence of the Special Judge (PC Act) to take cognizance of the offences did not cease. The word empowered in Section 173 (2) Cr PC refers to the inherent jurisdiction of the court where a charge-sheet had been filed. (iii) Admittedly, the charge-sheet was fil .....

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MLA). Therefore, the question of continuing the Petitioner s judicial custody under Section 309 (2) Cr PC did not arise. Mr. Chaudhary referred to the specific observations of the Supreme Court in Central Bureau of Investigation v. Anupam J. Kulkarni (supra). 20. While Mr. Chaudhary did not dispute that on 24th June 2017, the learned Special Judge (PC Act) had taken cognizance of the offences qua the other accused persons, he argued that that did not dispense with the need for the competent cour .....

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e 16th October 2017 in the competent court and that there was no excuse for the Investigating Agency not to do so despite the order of the Special Judge (PC Act) dated 10th October 2017. His primary submission on this aspect is that the failure by the Investigating Agency to comply with the aforementioned time limit would entitle the Petitioner to statutory bail under Section 167 (2) Cr PC. This was an indefeasible right which did not hinge upon any administrative lapses either on the part of th .....

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r as FIR No.205/2016 is concerned, the orders passed by the learned Special Judge (PMLA) simply continuing the judicial custody of the Petitioner and the order dated 30th November 2017 declining the relief under Section 167 (2) Cr PC were unsustainable in law and ought to be set aside by this Court. He pointed out that since the continued detention of the Petitioner beyond the permissible period of 90 days is illegal, the Petitioner is entitled to maintain the present petition for a writ of habe .....

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rately qua the Petitioner upon the filing of a supplementary charge sheet whereby additional accused persons may be named in the same offence. In this regard, reliance was placed upon the decisions in Mona Panwar v. High Court of Judicature (2011) 3 SCC 496; Prasad Shrikant Purohit v. State of Maharashtra (supra). 24. It was further submitted by Mr Mehra that the Investigating Agency was ready to file the charge sheet on 13th October 2017 but since the case had not yet been assigned to the Speci .....

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y seek regular bail. It is accordingly prayed that the present petition be dismissed as misconceived. Maintainability 25.1 At the outset, it requires to be noticed that a writ of habeas corpus is maintainable whenever it is alleged that the custody of the Petitioner is unlawful. Further, the Court has to examine the lawfulness of the custody on the date of filing of the reply by the Respondent and not with reference to the proceedings that may be instituted thereafter. In this context, reference .....

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be justified on the basis of the remand order passed by the Additional District Magistrate, Delhi at around 8 pm on 6th March 1953 and thereafter, by the trying Magistrate at about 3 pm on 9th March 1953 while adjourning the case after being told that a habeas corpus petition was being moved in the Supreme Court. 25.3 In the judgment delivered on 12th March 1953, the Supreme Court noted that the order of the trying Magistrate merely directed the adjournment of the case till 11th March 1953 and c .....

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re to be remanded to judicial till 11th March 1953 . 25.4 The Supreme Court noted that there was no order of remand made on 9th March 1953. There was only an order adjourning the case to 11th March 1953. The Supreme Court refused to take notice of the slips of paper presented to the Registrar at 5.20 pm on 11th March 1953. It observed that the continued detention of the Petitioners was without any formal order of remand and therefore the Court is to have regard to the legality of the detention a .....

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prive other persons of their personal liberty in the discharge of what they conceive to be their duty, must strictly and scrupulously observe the forms and rules of the law. That has not been done in this case. The petitioners now before us are therefore entitled to be released, and they are set at liberty forthwith. 26. It is the above forms and rules of law with which we are concerned in the present case which deals with the life and liberty of a citizen. Therefore, the present petition is mai .....

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xplosion at a mosque at Jalna on 27th August 2004 and the case was registered as CR No.194/2004 (Jalna Bomb Blast Case). 27.3 The charge sheet in Parbhani Bomb Blast Case was filed on 7th September 2006 against accused no.1 (Prasad Purohit) for various cognizable offences under IPC, Explosives Act and Arms Act. A supplementary charge sheet was filed in the Parbhani Bomb Blast Case against four accused persons (including the Appellants, i.e. Purohit and others) for the same offences as well as fo .....

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Case on 13th November 2008 and another was filed on 15th November 2008 in the Jalna Bomb Blast Case. 27.5 There was a third bomb blast in Malegaon on 29th September 2008 (Malegaon Bomb Blast Case). In this regard, FIR No.130/2008 was registered. One of the Appellants before the Supreme Court, Prasad Purohit, was arrested by the Anti-Terrorism Squad ( ATS ) on 2nd November 2008. Other Appellants were thereafter arrested. On 20th November 2008, approval was given under the Maharashtra Control of O .....

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th November 2008, after the last date 29th September 2008. 27.7 The High Court took a different view. It was held that the Special Judge had misdirected himself by stating that the cognizance was with reference to the offender and not the offence. Therefore, the order of discharge was set aside. 27.8 Aggrieved by the above order of the High Court, the Appellants came before the Supreme Court wherein the two central questions considered were: (i) Whether the common order of the Division Bench dat .....

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e rejection of bail by the trial court and as confirmed by the High Court is Justified? 27.9 The Supreme Court, on the aspect of taking cognizance, observed as under: 63. When we read the said Section 173 (2) (i) along with Section 190 Cr PC, it can be seen that any Magistrate of the First Class or any Magistrate of the Second Class specially empowered as provided under sub-section (2) of the said section may take cognizance of any offence upon a police report of such facts. Therefore, reading S .....

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furnished with the facts as stipulated under Section 173(2)(i)(a to h). A conjoint reading of Section 173(2)(i) and Section 190(1)(b), therefore, makes the position crystal clear that taking of cognizance of any offence by a Magistrate of the First Class or the Second Class subject to empowerment created under sub-section (2) of Section 190 can take cognizance upon a police report. It can be emphasised here that under Section 190(1)(b) where the police report as stated in Section 173(2)(i) is fi .....

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her the very fact that proceedings pertaining to Parbhani and Jalna were pending before the Magistrate where such proceedings were initiated by the filing of the police report till the occurrence in Malegaon took place itself was sufficient to demonstrate that judicial mind was very much applied to the proceedings based on the police report consequent upon cognizance taken. (.....) 66. We are now pitted with the question as to whether the taking of cognizance of the offence by the competent cour .....

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ss or an empowered Second Class Magistrate, takes cognizance of any offence that would fulfil the requirement of Section 2(1)(d) relating to competent court. We have noted under MCOCA that beyond what has been stipulated under Section 2(1)(d) there is no other provision dealing with the matter relating to a competent court for the purpose of taking cognizance. When under the provisions of CrPC, Judicial Magistrate of First Class has been empowered to take cognizance of any offence based on a pol .....

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organised crime syndicate or on its behalf indulged in a crime in respect of which a charge-sheet has already been filed before the competent court which court had taken cognizance of such offence. 67. Therefore, we are able to state the legal position without any ambiguity to the effect that in the event of a Judicial Magistrate, First Class or an empowered Second Class Magistrate having taken cognizance of an offence based on a police report as stipulated under Section 173 (2) (i) Cr PC, such .....

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Maharashtra (1971) 2 SCC 654 and State of West Bengal v. Salap Service Station and others 1994 (3) Supp. SCC 318 and explained the law with respect to Section 173 Cr PC as under: The above statement of law with particular reference to Section 173(8) Cr PC makes the position much more clear to the effect that the filing of the supplementary charge-sheet does not and will not amount to taking cognizance by the court afresh against whomsoever again with reference to the very same offence. What all .....

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provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cognizance of and the only scope would be for the added offender to seek discharge after the filing of the supplementary charge-sheet against the said offender. (emphasis supplied) 28. In this context, reference may also be made to a recent decision of the Supreme Court Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 on the question of a Magistrate t .....

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g cognizance may be delayed because of several reasons. It may be delayed because of systemic reasons. It may be delayed because of the Magistrate's personal reasons. 29. In the present case, on 24th June 2017, the competent court, viz. the Special Judge (PC Act) took cognizance of the offences under FIR No.205/2016. Every time a supplementary charge-sheet was filed thereafter, there was no need for the Court to again take cognizance of the same offences qua the additional accused. 30. The s .....

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aharashtra (supra). As explained therein, the option for such an accused person, who is included in the supplementary charge sheet for the same offences under the FIR, would be to seek discharge. 31. The Court further notices that the Petitioner was himself aware of his inclusion in the supplementary charge sheet which is why he applied for statutory bail under Section 167 (2) Cr PC. He has been in custody in this case from 18th July 2017 onwards and therefore, was aware of developments at every .....

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viz., that the charge sheet qua the Petitioner had to be filed within 90 days from 18th July 2017, i.e. on or before 16th October 2017 in the competent court, failing which, he would be entitled to statutory bail. In the present case, the competent court is that Court which could have taken cognizance of the offences qua the Petitioner. 33. The Special Judge (PC Act) did have the jurisdiction to take cognizance of the offences under the PC Act and IPC. However, once the case was transferred from .....

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y supplementary charge sheet with regard to FIR No.205/2016. For the purpose of Section 167 (2) Cr PC, the investigation qua the Petitioner was complete only when the supplementary charge sheet was filed in the jurisdictional court. The court of the Special Judge (PC Act) ceased to have jurisdiction qua the present case after 10th October 2017 and in any event, after 12th October 2017, when the file was received by the District Judge (HQ), Tis Hazari Courts with a clear direction that it should .....

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sheet before the proper Court, since the file had not reached such Court, equally the accused cannot also be deprived of the right to statutory bail as a result thereof. It is only when the Court of the Special Judge (PMLA) received the supplementary charge sheet could it be said that the investigation qua the Petitioner was complete. That did not happen, for the reasons already noted, till 17th October 2017, by which time the 90 days period had elapsed. 36. It was repeatedly stressed by Mr. Meh .....

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. Otherwise also, such departures from the procedure would come within the category of irregularity and not an illegality. (emphasis supplied) 37. When the matter travelled to the Supreme Court by way of an MA No.1487/2017 in Crl Appeal No.12/2017, the Supreme Court set it aside with the following order: Having heard the learned counsel appearing for the parties, we set aside the judgment and order dated 14.09.2017 of the High Court inasmuch, as after recording in paras 76 & 77 that the appe .....

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s obviously incorrect in law. We are, therefore, of the considered view that, in the justice, this order is set aside and the matter is remanded for hearing afresh by the High Court. All contentions are kept open to both the parties. We request the High Court to decide the matter as expeditiously as possible. 38. Clearly, therefore, the Supreme Court did not accept the plea of the ED in the Petitioner s own case i.e. in the PMLA case that the ED cannot be made to suffer for the fault of the Cour .....

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e statutory bail under Section 167(2) Cr PC. The said order dated 30th November, 2017 of the Special Judge, PMLA to that extent is hereby set aside. Summary of conclusions 40. To summarize the conclusions: (i) The plea of the Petitioner that since no cognizance has yet been taken of the offence qua the Petitioner, the continued detention of the Petitioner in the judicial custody is illegal, is rejected. (ii) The failure by the Investigating Agency to file a supplementary charge-sheet qua the Pet .....

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