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TMI Blog2024 (5) TMI 837X X X X Extracts X X X X X X X X Extracts X X X X ..... dv. Mr. Nikhil Jain, AOR Ms. Mansi Tripathi, Adv. Ms. Divya Jain, Adv. Ms. Monica Dhingra, Adv. Mr. Harshit Sethi, Adv. Mr. Nikilesh Ramachandran, AOR Ms. Mansi Tripathi, Adv. For the Respondent : Mr. S.V. Raju, A.S.G. Mr. Sanjay Kr. Dubey, Adv. Mr. Mukesh Kumar Maroria, AOR Mr. Zoheb Hussain, Adv. Mr. Annam Venkatesh, Adv. Mr. Arkaj Kumar, Adv. Mrs. Rajeshwari Shankar, Adv. JUDGMENT ABHAY S. OKA, J. 1. Leave granted. FACTUAL ASPECTS 2. Since the issues involved are common and very little turns on facts, we broadly refer to the factual aspects. The appellants are the accused in complaints under Section 44 (1) (b) of the Prevention of Money Laundering Act, 2002 (for short, 'the PMLA'). The appellants have been denied the benefit of anticipatory bail by the impugned orders. We are dealing with the cases of the accused who were not arrested after registration of the Enforcement Case Information Report (ECIR) till the Special Court took cognizance under the PMLA of an offence punishable under Section 4 of the PMLA. The cognizance was taken on the complaints filed under Section 44 (1)(b). These are the cases where the appellants did not appear before the Special Court after su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 167 (2) of the CrPC. After cognizance is taken, the power can be exercised at the highest under Section 309 (2) of the CrPC; (e) In view of this Court's decision in Satender Kumar Antil v. Central Bureau of Investigation & Anr. (2021) 10 SCC 773, as clarified in the subsequent decision in Satender Kumar Antil v. Central Bureau of Investigation and Anr. (2022) 10 SCC 51; [2022] 10 S.C.R. 351, when during the investigation, the prosecution does not seek the custody of the accused, after the Court takes cognizance, there is no need to arrest the accused; (f) When the accused is not arrested during the investigation, after he appears before the Special Court pursuant to a summons, it is not necessary for him to apply for bail. The Special Court can always take recourse to Section 88 of the CrPC. In such a situation, if the ED is seeking remand by taking recourse under Section 309(2) of the CrPC, it will be incumbent upon the Special Court to give an opportunity of being heard to the accused and pass an order recording reasons in brief; (g) As held in the second case of Satender Kumar Antil3, Section 170 of the CrPC is merely a procedural compliance. It is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India & Ors. 2022 SCC OnLine SC 929; [2022] 6 SCR 382, it is submitted that money laundering is an offence against the nation. Therefore, taking into consideration the gravity and severity of the offence under the PMLA, mandatory compliance with the requirements of Section 45 (1) must always be ensured; (g) In view of Section 65, read with Section 71 of the PMLA, the provisions of the PMLA will have an overriding effect over the provisions of the CrPC; and (h) In none of these cases, the conditions incorporated under Section 45 (1) of the PMLA have been fulfilled; therefore, the appellants are disentitled to grant of anticipatory bail. CONSIDERATION OF SUBMISSIONS 5. While dealing with the complaints under Section 44 (1)(b), this Court, in its judgment dated 8th April 2024 in the case of Yash Tuteja & Anr. v Union of India & Ors. 2024 INSC 301 dealt with the issue of the applicability of provisions of the CrPC to a complaint under Section 44 (1)(b) of the PMLA. While dealing with the said issue in paragraph 6, this Court held thus: "6. The only mode by which the cognizance of the offence under Section 3, punishable under Section 4 of the PMLA, can be taken by the Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon a complaint made in writing, every summons or warrant issued under subsection (1) shall be accompanied by a copy of such complaint. (4) When by any law for the time being in force any processfees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint. (5) Nothing in this section shall be deemed to affect the provisions of Section 87." ( emphasis added ) 7. As the punishment for an offence punishable under Section 4 of the PMLA is of imprisonment for more than three years, in view of clause (x) of Section 2 of the CrPC, the complaint will be treated as a warrant case. Under Section 204(1)(b), the Court can issue either a warrant or summons in a warrant case. Therefore, while taking cognizance, the Special Court has the discretion to issue either a summons or warrant. Regarding the discretion under Section 204 (1)(b), this Court has laid down the law in the case of Inder Mohan Goswami & Anr. v. State of Uttaranchal & Ors (2007) 12 SCC 1; [2007] 10 SCR 847. This Court held that as a general rule, unless an accused is charged with an offence of heinous c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is not mandatory to issue a warrant while issuing process; instead issuance of a summons would suffice. When an accused is on bail, while issuing the process, the Special Court will have to issue only a summons. When the accused is granted bail in the same case, it is not necessary to arrest him after taking cognizance. If such an accused does not remain present after service of summons without seeking an exemption, the Special Court can always issue a warrant to secure his presence. 9. Section 61 of the CrPC provides for the form of summons. Form No. 1 in the 2nd Schedule is the prescribed form of summons under Section 61 of the CrPC. For the sake of convenience, we are reproducing Form No. 1: FORM 1 [See Section 61] Summons to an accused person To (name of accused) of (address). Whereas your attendance is necessary to answer to a charge of (state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of __________, on the _____day of _______Herein fail not. Dated, this day of , 20 (Seal of the Court) (Signature) ________________ Looking at the form of the summons, it is appa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this subsection without giving an opportunity of hearing to the Public Prosecutor." ( emphasis added ) On its plain reading, subSection (1) of Section 437 does not apply when an accused appears or is brought before a High Court or Sessions Court. A Special Court is appointed under subSection (1) of Section 43 of the PMLA, which reads thus: "43. Special Courts.-(1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under Section 4, by notification, designate, one or more Courts of Session as Special Court or Special Courts for such area or areas or for such case or class or group of cases as may be specified in the notification. Explanation.-In this subsection, "High Court" means the High Court of the State in which a Sessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se with the personal attendance of the accused. We may note here that Section 205 empowers the Court to grant exemption only when a summons is issued. Subsection (2) of Section 205 provides for enforcing the attendance of the accused before the Court at the time of the trial. If the accused who appears pursuant to the summons issued on a complaint were deemed to be in custody, the lawmakers would not have provided for Section 205. Hence, we reject the argument of the learned ASG that once an accused appears before the Special Court on a summons being served to him, he shall be deemed to be in custody. 12. Now, we come to Section 88 of the CrPC. Section 88 reads thus: "88. Power to take bond for appearance. -When any person for whose appearance or arrest the officer presiding in any Court is empowered to issue a summons or warrant, is present in such Court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such Court, or any other Court to which the case may be transferred for trial." If a summons on a complaint is issued and the accused appears on the returnable date, it is not necessary in every case to direct the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. A decision of this Court in the case of Pankaj Jain v. Union of India and Anr. (2018) 5 SCC 743; [2018] 9 SCR 248 had an occasion to deal with the issue. The occasion to consider the provision of Section 88 was the word "may" used in the Section. We may conveniently reproduce paragraphs 21 and 22 of the said decision, which reads thus: "21. This Court in State of Kerala v. Kandath Distilleries [State of Kerala v. Kandath Distilleries, (2013) 6 SCC 573] came to consider the use of expression "may" in the Kerala Abkari Act, 1902. The Court held that the expression conferred discretionary power on the Commissioner and power is not coupled with duty. Following observation has been made in para 29: (SCC p. 584) "29. Section 14 uses the expression "Commissioner may", "with the approval of the Government" so also Rule 4 uses the expressions "Commissioner may", "if he is satisfied" after making such enquiries as he may consider necessary "licence may be issued". All those expressions used in Section 14 and Rule 4 confer discretionary powers on the Commissioner as well as the State Government, not a discretionary power coupled with duty." ( emphasis in original ) 22. Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, for his appearance in such court, or any other court to which the case may be transferred for trial.' This Section 88 (corresponding to Section 91 CrPC, 1898) would not apply qua a person whose appearance is not on his volition, but is brought in custody by the authorities as held by the Constitution Bench of the Hon'ble Supreme Court in Madhu Limaye v. Ved Murti [Madhu Limaye v. Ved Murti, (1970) 3 SCC 739] , wherein it was observed that: (SCC p. 745, para 17) '17. ... In fact Section 91 applies to a person who is present in court and is free because it speaks of his being bound over, to appear on another day before the court. That shows that the person must be a free agent whether to appear or not. If the person is already under arrest and in custody, as were the petitioners, their appearance depended not on their own volition but on the volition of the person who had their custody.' Thus, in a situation like this where the accused were not arrested under Section 19 of PMLA during investigations and were not produced in custody for taking cognizance, Section 88 CrPC shall apply upon appearance of the accused person on his own volition before the trial court to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court grants bail. When an accused furnishes a bond in accordance with Section 88 of the CrPC for appearance before a Criminal Court, he agrees and undertakes to appear before the Criminal Court regularly and punctually and on his default, he agrees to pay the amount mentioned in the bond. Section 441 of the CrPC deals with a bond to be furnished by an accused when released on bail. Therefore, in our considered view, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail. 16. Now, we deal with a contingency where after service of summons issued on a complaint under the PMLA, the accused does not appear. One category of such cases can be where the accused appears on the returnable date of the summons and subsequently does not appear, notwithstanding the furnishing of bonds under Section 88. The other category of cases is where, after the service of summons is made on the complaint, the accused does not appear. This category will also include a case where the accused appears on returnable date, but on a subsequent date fails to appear. In the first contingency, where the accused does not appear in breach of the bond furnished under Section 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail. Hence, Section 45(1) will have no application to such an application. 19. At this stage, we may refer to a decision of this Court in the case of Satender Kumar Antil3. While dealing with Sections 88, 170, 204, and 209 of the CrPC, in paragraphs 100.5, this Court held thus: "100.5. There need not be any insistence of a bail application while considering the application under Sections 88, 170, 204 and 209 of the Code." At this stage, we may note here that from paragraphs 86 to 89 of the same decision, this Court dealt with category of special acts. In paragraph 89, this Court held thus: "89. We may clarify on one aspect which is on the interpretation of Section 170 of the Code. Our discussion made for the other offences would apply to these cases also. To clarify this position, we may hold that if an accused is already under incarceration, then the same would continue, and therefore, it is needless to say that the provision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass an order on the application by recording brief reasons. While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44(1)(b), provided the requirements of Section 19 are fulfilled. ON FACTUAL ASPECTS OF THE APPEALS 22. Coming back to the facts of the cases before us, warrants were issued to the appellants as they did not appear before the Special Court after the service of summons. As held earlier, the appellants could have applied for cancellation of warrants issued against them as the warrants were issued only to secure their presence before the Special Court. Instead of applying for cancellation of warrants, the appellants applied for anticipatory bail. All of them were not arrested till the filing of the complaint and have cooperated in the investigation. Therefore, we propose to direct that the warrants issued against the appellants shall stand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dates, the Special Court has the powers under Section 89 read with Sections 70 of the CrPC to issue a warrant directing that the accused shall be arrested and produced before the Special Court; If such a warrant is issued, it will always be open for the accused to apply for cancellation of the warrant by giving an undertaking to the Special Court to appear before the said Court on all the dates fixed by it. While cancelling the warrant, the Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted. When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail. Hence, Section 45(1) will have no application to such an application; h) When an accused appears pursuant to a summons, the Special Court is empowered to take bonds und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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