IMPORTANT POINT
Bail – When any person accused of or suspected of commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of police station or appears or is brought before Court other than High Court or Court of Session, he could be released by Court on bail under Section 437 of Cr.P.C.

ORDER :

1. Leave granted.

2. This is one of the cases of non-application of mind by the Court, wherein the Special (CBI) Court No. 1 (hereinafter referred to as the Special Court) though had not passed any order summoning the present appellant (accused No. 10), on taking the cognizance of the offences under the Prevention of Money Laundering Act, 2002 (for short PMLA) vide order dated 07.12.2022, issued summons to the appellant in the Form prescribed under Section 61 Cr.P.C. The appellant thereafter on his voluntarily surrendering before the said Court, had applied for bail, which came to be rejected by the Special Court vide the order dated 22.02.2023.

3. The said order having been challenged by the appellant before the High Court by filing CRM (SB) 164 of 2023, the same came to be dismissed by the High Court vide the impugned order dated 18.10.2023. Being aggrieved by the same, the appellant has approached this Court by way of present appeal.

4. At the outset, the learned senior counsel, Mr. Luthra for the appellant drawing the attention of the Court to the order dated 07.12.2022 passed by the Special Court, submitted that though the said Court while taking cognizance of the offence had observed that the accused Nos. 1, 2 and 9 were in judicial custody of the Court and therefore there was no question of issuing any process, and that in respect of the other 11 accused, necessary order for issuance of summons would be issued at a later stage, the summons came to be issued and served upon the appellant. According to him, respecting the summons of the Court, the appellant had voluntarily surrendered before the Court and since then, he is in judicial custody. He also submitted that in absence of any order summoning the appellant, the appellant could not have been taken into custody, even if the cognizance of the offence was taken against him. He conceded that it was a mistake on the part of the appellant in surrendering on the wrong legal advice given to him.

5. However, the learned A.S.G. Mr. Raju for the respondent - ED submitted that the issue of taking the appellant in custody without any order of summons was not raised by the appellant before the High Court. Of course, he fairly submitted that there was no order passed by the Special Court issuing summons or warrant against the appellant, and that appellant had voluntarily appeared and surrendered before the Special Court. Mr. Raju pressing into service the provisions contained in Section 437 of the Cr.P.C. however submitted that the accused, even without issuance of summons or warrant from the Court, can appear and surrender before the Court and seek his release on bail. In the instant case, runs submission of Mr. Raju, even if summons was not issued, because the appellant had surrendered before the Court, his application seeking bail was considered under Section 437 Cr.P.C. and was rejected by the Special Court, which order has been confirmed by the High Court.

6. Having regard to the submissions made by the learned senior counsel for the parties and to the material on record, it appears that the Special Court while taking cognizance of the offences under PMLA qua fourteen accused including the appellant (accused no. 10) and allowing the prayer for further investigation vide the order dated 07.12.2023, had observed as under:

“Since accused Nos. 1, 2 & 9 are in judicial custody of Court so no question of issue any process arises here. In respect of other Eleven accused who are companies necessary order for issuance of summons will be issued at a later stage. Accordingly, it is directed to supply two sets of copies to accused Nos. 1, 2 & 9 who are now detained in judicial custody at respective Correctional Homes and since accused No. 1 and 2 are produced through virtual mode, so copy of the complaint be supplied to accused Nos. 1, through the concerned Superintendent Correctional Homes are accordingly directed to cause service of the complaint to accused No. 1, Partha Chatterjee, a