1. Cognizance of offences under PMLA — Issuance of summons without a formal summoning order — Voluntary surrender and subsequent bail rejection. (Para 2 , 3 )
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2024 Supreme(SC) 136
SUPREME COURT OF INDIA
BELA M. TRIVEDI, PANKAJ MITHAL, JJ.
Souvik Bhattacharya – Appellant
Versus
Enforcement Directorate, Kolkata Zonal OFFICE-II – Respondent
Criminal Appeal No. 963 of 2024, SLP (Criminal) No. 14476 of 2023
Decided On : 16-02-2024
Important Points
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.
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.
Subject
Criminal Law - Bail
Act Referred
Headnote
Criminal Procedure Code, 1973 – Section 437 – Prevention of Money Laundering Act, 2002 – Section 45-D – Bail – Court, while taking cognizance of an offence is of the opinion that there is sufficient ground for proceeding, may issue summons for attendance of accused when case appears to be a summons case, or may issue a warrant for causing accused to be brought or to appear before Court, when case appears to be a warrant case under Section 204 of Cr.P.C. – 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. – In instant case there was no order passed by Special Court for issuance of summons or warrant against Appellant – Since there was no order passed by Special Court for issuance of summons or warrant, application of appellant seeking bail could not have been entertained – There was a basic flaw in proceedings conducted before Special Court – Appellant was not arrested during course of investigation and also when prosecution complaint was filed before Special Court – In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., summons could not have been issued or served upon appellant nor he could have been arrested or taken into custody – Bail granted to appellant. (Paras 8, 9, 10 and 12)
Facts of the case:
This is one of cases of non-application of mind by Court, wherein Special (CBI) Court no.1 though had not passed any order summoning present appellant (accused No.10), on taking cognizance of the offences under Prevention of Money Laundering Act, 2002 vide order dated 07.12.2022, issued summons to appellant in Form prescribed under Section 61 Cr.P.C.
Findings of Court:
It will be open for Special Court to pass appropriate orders, as also will be open to respondent – ED to file appropriate proceedings as may be permissible under the law, as exigency may require.
Result : Appeal allowed. Bail granted.
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellants : Sidharth Luthra, Mukul Rohatgi, Diksha Rai, Sheezen Hashmi, Mihir Joshi, Akash Dubey, Arijit Dey, Atiga Singh, Apurva Sachdev.
For the Respondents: S.V. Raju, Mukesh Kumar Maroria, Zoheb Hussain, Annam Venkatesh, Sairica Raju, Chandra Prakash, Kanu Agrawal, Rukhmini Bobde.
Advocate Appeared:
For the Appellants : Sidharth Luthra, Mukul Rohatgi, Diksha Rai, Sheezen Hashmi, Mihir Joshi, Akash Dubey, Arijit Dey, Atiga Singh, Apurva Sachdev.
For the Respondents: S.V. Raju, Mukesh Kumar Maroria, Zoheb Hussain, Annam Venkatesh, Sairica Raju, Chandra Prakash, Kanu Agrawal, Rukhmini Bobde.
Table of Contents
2. Appellant contends custody is illegal without a summoning order — Respondent argues an accused may voluntarily surrender and seek bail under Section 437 CrPC. (Para 4 , 5 )
3. Summons were issued despite the Special Court's explicit order to issue them later; bail cannot be entertained without a valid summoning order. (Para 6 , 7 , 9 )
4. Issuance of summons or warrants requires a prior judicial order under Section 204 CrPC; without such order, custody cannot be legally justified under Section 437 CrPC. (Para 8 , 10 )
5. Appeal allowed — Appellant directed to be released on bail. (Para 11 , 12 , 13 )
6. Can a court issue summons to an accused without a specific judicial order after taking cognizance?
No. Under Section 204 CrPC, a court must first be of the opinion that there are sufficient grounds for proceeding before it may issue summons for the attendance of the accused or a warrant to bring the accused before the court. (Para 8 , 10 )
7. Does Section 437 CrPC allow for bail if an accused surrenders without a valid summoning order or arrest?
Section 437 CrPC applies when an accused is arrested, detained, or when a summons or warrant is issued. In the absence of a valid order for issuance of summons or warrant under Section 204 CrPC, the legal basis for custody and subsequent bail applications is flawed. (Para 8 , 9 , 10 )
8. What is the legal consequence of a summons issued without a supporting judicial order under Section 204 CrPC?
A summons issued without a supporting judicial order is fundamentally flawed. Consequently, the accused cannot be legally taken into custody, and any application for bail based on such an unauthorized summons cannot be legally entertained. (Para 9 , 10 )
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
