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TMI Blog2023 (10) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... d. to pass any such other or further order(s) as mat do complete justice on the facts and circumstances of the case." Background 2. Briefly stated, the facts of the case for the purpose of adjudication of the present petition are as under: i. ECIR/09/DLZO/2016 was initiated by the petitioner/Directorate of Enforcement (hereinafter referred to as the 'department') against 11 accused persons including the present respondent, Sh. Dev Inder Bhalla who was stated to be Director of M/s Interdev Aviation Services Pvt. Ltd., Singapore. ii. It is the case of the department that during course of investigation in the aforesaid ECIR, summons were issued to the respondent under Section 50(2) and 50(3) of the PMLA on various dates to join the investigation, however, he did not appear. To secure his presence, on an application moved by the department, open ended bailable warrants were issued by Mr. Naresh Kumar Malhotra, Special Judge, New Delhi vide order dated 12.01.2018. It is the case of the petitioner that on completion of investigation, a complaint was filed against 11 persons including the present respondent under Section 44 for the PMLA for commission of offences under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to attend the trial of the case has been issued by the court and are in existence. 29. It may also be noted that the complaint case in the present case was filed on 11.12.2020, as mentioned above, after carrying out due investigations against the accused persons including the accused Dev Inder Bhalla director of M/s Interdev, Singapore (A-11) and his role is also specified in Para No. 7 (k) ;- Role of accused persons in the commission of offence of money laundering: (k) 'During the course of investigation, it is revealed that Dev Inder Bhalla is the director of M/s Interdev Aviation Services Singapore : signed the sham agreement dated 23.11.2009 with Ms KRBL DMCC, Dubai to introduce M/s Interdev Aviation Services Put Ltd to M/s Niki Lufitfahrt GmbH, Austria for supply of used planes to launder the proceeds of crime to hide the real source of the money and has thus being the representative of Ms Interdev, Aviation Services Pvt. Ltd, actually involved in the possession, acquisition and layering of the proceeds of crime in the offence of money laundering. Further, investigation into his role and proceeds of crime generated by him due to this criminal activity related t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resting the present respondent was within permissible parameters of the procedure, as envisaged in law. Learned Special Counsel also drew the attention of this Court to the following judgments to argue that police remand can be sought in respect of an accused person who is arrested during the course of further investigation after filing of the chargesheet. i. State v. Dawood Ibrahim Kaskar, 2000 (10) SCC 438 - It was submitted that in the said case, the Hon'ble Supreme Court held that while dealing with an accused person who is produced before the Court pursuant to a warrant of arrest issued under Section 73 of the CrPC, the Court can either release him on bail under Section 439 of the CrPC or order his continued detention (in police custody or in judicial custody) under Section 167 of the CrPC. It is the Court's discretion to allow or deny an application moved by the investigating agency concerned seeking police custody, in accordance with Section 167(3) of the CrPC. ii. Pradeep Ram v. State of Jharkhand, (2019) 17 SCC 327 - Learned Special Counsel for the department submitted that the Hon'ble Supreme Court concluded that an accused person be remanded under Section 167(2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of executing the said non-bailable warrants, his arrest, therefore, would be deemed to be one during the course of further investigation. In this scenario, the application of police custody would be justifiable and if sufficient grounds for seeking such custody were made out, the same ought to have been allowed by the learned Special Court. It was pointed out that in the complaint it is categorically stated that further investigation into the role of the respondent is pending. Submissions on behalf of the Respondent/Dev Inder Bhalla 9. Learned counsel appearing on behalf of the respondent drew the attention of this Court to the following paragraphs of the impugned order: "37. Thereby, the IO was duty bound to handover the unexecuted NBW's so issued to the Court at the time of filing the complaint in the present matter, which has not done by the department for the plausible reasons best known to them, nor the said fact was apprised to the Court at that time or even thereafter. 38. On a specific query by the court regarding the steps taken by the agency qua the execution of the NBWs, the learned PP after discussing with the IO of the case candidly admitted to the fact tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de Provisional Attachment Order No. No. 06/2019 dated 03.07.2019. (iv) To pass- an order dispensing the complainant from the deposition under Section 200 of the Code of Criminal Procedure; (v) To pass such other or further orders as this Hon'ble Court may deem fit and proper in the interest of justice." 10. Learned counsel appearing on behalf of the respondent submitted that the judgments relied upon by learned Special Counsel for the department are distinguishable on the facts of the present case as has also been observed by the Special Court in the impugned order dated 16.02.2023. Learned Counsel for the respondent placed reliance on a judgment dated 09.09.2011 in Criminal Appeal No. 1758 of 2011 titled 'Raghuvansh Dewanchand Bhasin v. State of Maharashtra & Anr.' wherein in para 23 the following guidelines are laid down which are as under: "23. However, before parting with the judgment, we feel that in order to prevent such a paradoxical situation, we are faced with in the instant case, and to check or obviate the possibility of misuse of an arrest warrant, in addition to the statutory and constitutional requirements to which reference has been made above, it would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y in case of misuse; (k) In the event of warrant for execution beyond jurisdiction of the Court issuing it, procedure laid down in Sections 78 and 79 of the Code must be strictly and scrupulously followed; and (l) In the event of cancellation of the arrest warrant by the Court, the order cancelling warrant shall be recorded in the case file and the register maintained. A copy thereof shall be sent to the concerned authority, requiring the process to be returned unexecuted forthwith. The date of receipt of the unexecuted warrant will be entered in the aforesaid registers. A copy of such order shall also be supplied to the accused." 11. Learned counsel appearing on behalf of the respondent further submitted that insistence of the department for seeking police custody of the respondent even after declining the same, by the learned Special Court, is not justified. It is pointed out that after being granted interim bail, the respondent has joined investigation as and when called by the Investigating Officer. During the course of investigation, it was pointed out that the present respondent has been arrested by department in another case and he is in judicial custody in the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered in accordance with the relevant statutory provisions. 15. Learned Special Counsel submitted that in Satender Kumar Antil (supra), the Hon'ble Supreme Court observed that even if a case is required to be committed to the Court of Sessions for trial in terms of Section 209 of the CrPC, the Magistrate has the power to remand an accused to custody until such commitment has been made. Analysis and Findings 16. Heard learned counsel for the parties and perused the record. 17. For determination of the present petition, it is relevant to take note of the following dates: i. 18.10.2016 - The Central Bureau of Investigation registered RC No. 217 2016A0015/ACU-V under Section 120B of the Indian Penal Code read with Sections 7/8/9/12/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. ii. 04.11.2016 - Pursuant to the aforesaid case, the department registered ECIR/09/2016/DLZO. iii. 12.01.2018 - Open ended non-bailable warrants were issued qua the respondent. iv. 08.12.2020 - Under Section 44 of the PMLA, the department filed a prosecution complaint before the Court of the learned Special Judge (PMLA), Rouse Avenue Courts for commission of offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.2023 at 2100 Hours. 19. Normally, warrants are issued by the concerned Court during the course of investigation when an accused person is not available despite efforts or after filing of the chargesheet when the person who has been summoned by the concerned Trial Court does not appear to face trial. Another possible situation can be where warrants issued against a person during the course of investigation could not be executed and a chargesheet/complaint is filed with respect to the other accused persons and the person against whom warrants have been issued is shown as absconding. In Dawood Ibrahim Kaskar (supra), the Hon'ble Supreme Court was dealing with a similar situation where an application was moved on behalf of the Central Bureau of Investigation for issuance of non-bailable warrants and publication of proclamation under Section 8(3)(a) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 against the absconding accused named in the chargesheet. In Dawood Ibrahim Kaskar (supra), the charge-shseet was filed showing the said accused persons as absconders. It was in this factual backdrop of the aforesaid case that the Hon'ble Supreme Court held that if such a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontinuing, but, at the same time it is pertinent to note that after filing of the said complaint, no application was moved before the learned Special Court seeking issuance of non-bailable warrants in lieu of summons. In fact, the application seeking police remand has the following subject: "APPLICATION UNDER SECTION 73(3) OF CODE OF CRIMINAL PROCEDURE, 1973 AND SECTION 167 OF CODE OF CRIMINAL PROCEDURE, 1973 READ WITH SECTION 65 OF PMLA, 2002 FOR EXECUTION OF NON-BAILABLE WARRANT DATED 15.01.2018 ISSUED VIDE ORDER DATED 12.01.2018 AGAINST THE ACCUSED/RESPONDENT AND FOR SEEKING ED CUSTODY OF ACCUSED DEV INDER BHALLA FOR 14 DAYS." The prayer in the said application is as under: "1. To accept the execution report of the open ended NBW dated 15.01.2018 and 2. To remand the accused Sh. Dev Inder Bhalla to ED custody for 14 days; and/or 3. To pass such other or further orders as this Hon'ble Court may deem fit and proper in the interest of justice." (emphasis supplied) It is pertinent to note that apart from averments made in paragraph 14 of the said application that "having reached a very objective satisfaction that the arrest and interrogation of Sh. Dev Inder Bhalla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovide adequate safeguards to an arrested person. If Section 167 of the CrPC, 1973 is not applicable, then there is no role for the Magistrate either to remand or otherwise. 74. Such a Magistrate has a distinct role to play when a remand is made of an accused person to an authority under the PMLA, 2002. It is his bounden duty to see to it that Section 19 of the PMLA, 2002 is duly complied with and any failure would entitle the arrestee to get released. The Magistrate shall also peruse the order passed by the authority under Section 19(1) of the PMLA, 2002. Section 167 of the CrPC, 1973 is also meant to give effect to Section 19 of the PMLA, 2002 and therefore it is for the Magistrate to satisfy himself of its due compliance. Upon such satisfaction, he can consider the request for custody in favour of an authority, as Section 62 of the PMLA, 2002, does not speak about the authority which is to take action for non-compliance of the mandate of Section 19 of the PMLA, 2002. A remand being made by the Magistrate upon a person being produced before him, being an independent entity, it is well open to him to invoke the said provision in a given case. To put it otherwise, the Magistrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CrPC provides as under: "73. Warrant may be directed to any person.- *** **** *** (3) When the person against whom such warrant is issued is arrested, he shall be made over with the warrant to the nearest police officer, who shall cause him to be taken before a Magistrate having jurisdiction in the case, unless security is taken under section 71. Under these circumstances, the learned Special Court has rightly rejected the application for remand of respondent on behalf of the department at this stage. 26. Learned Special Counsel is right in his contention that the respondent, even if he presents himself in pursuance of the summons issued by the learned Special Court, would have to be granted bail as per the provisions of PMLA. 27. This Court has been informed that an application for regular bail has been filed by the present respondent which is pending before the learned Special Court. 28. In view of the above discussion, this Court finds no reason to interfere with the impugned order dated 16.02.2023. 29. The petition is dismissed and disposed of accordingly. 30. Pending applications, if any, also stand disposed of. 31. Needless to state, nothing stated hereinabo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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