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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Virender Singh, J.
Hitesh Gandhi - Petitioner
Vs.
Enforcement Directorate Office (ED) - Respondent
Cr. Revision No. 597 of 2023 a/w Cr. Revision No. 648 of 2023
Decided On : 12-01-2024
PMLA - Bail Applications - Section 167 CrPC, Sections 44 and 45 of PMLA - [167, 173] - The court discussed the provisions of Section 167 and 173 CrPC, and the distinction between 'arrest' and 'custody' as per relevant case laws. It also highlighted the compliance of Section 173 CrPC and the interpretation of the word 'shall' in sub-section (5) as directory rather than mandatory.
Fact of the Case:
The petitioners filed bail applications under Section 167 (2) CrPC, claiming entitlement to statutory bail due to the ED's failure to file the complete charge sheet within the stipulated period.
Finding of the Court:
The court found that the ED's submission of a complaint with a list of documents and witnesses, albeit not the actual documents, on the day of filing, constituted due compliance with the provisions of Section 167 CrPC.
Issues: The issues revolved around the interpretation of 'custody' and 'arrest', compliance with Section 173 CrPC, and the entitlement to default bail under Section 167 CrPC.
Ratio Decidendi: The court's decision was influenced by the interpretation of the word 'shall' in Section 173(5) CrPC as directory, the distinction between 'arrest' and 'custody', and the compliance of the ED with the provisions of Section 167 CrPC.
Final Decision: The revision petitions were dismissed, affirming the trial court's order, as there was no failure in compliance with the statutory provisions.
JUDGMENT :
Virender Singh, J.
The order of mine shall dispose of the above titled Revision Petitions, which have been filed by the applicants, against the order, dated 10th November, 2023, passed by the Court of learned Special Judge, Shimla (hereinafter referred to as ‘the learned trial Court’).
2. By way of order, dated 10th November, 2023, the learned trial Court has dismissed the bail applications, filed by the petitioners, under Section 167 (2) of the Code of Criminal Procedure (hereinafter referred to as ‘CrPC’), pertaining to ECIR/SHSZO/04/2019, dated 19th July, 2019, registered under the provisions of Prevention of Money Laundering Act, 2022 (hereinafter referred to as ‘PMLA’), with the Directorate of Enforcement, Sub Zonal Office, Shimla (hereinafter referred to as ‘ED’), for releasing them on bail, on account of the fact that the ED could not file the complete charge sheet, within the stipulated period, as per Section 167 CrPC.
3. Brief facts, leading to the filing of the present petitions, before this Court, may be summed up, as under:
4. The petitioners have been arrested by the ED, in case, bearing No. ECIR/SHSZO/04/2019, dated 19th July, 2019, registered with ED.
5. According to petitioner-Hitesh Gandhi, he was arrested on 29th August, 2023, at 09.20 p.m. and the final report, consisting of complaint, was filed by the ED on 21st October, 2023, whereas, according to petitioner-Arvind Rajta, he was arrested on 30th August, 2023 at Shimla and ED has filed the incomplete report, on 21st October, 2023.
6. Elaborating their stand, it has been submitted by the petitioners that the complaint, without accompanying the documents and statements relied upon, cannot be said to be final report/charge sheet, in the eyes of law.
7. According to the petitioners, the ED has failed to file the charge sheet, within the stipulated period of sixty days, as such, they are entitled for the relief of statutory bail.
8. It is the further case of the petitioners that the learned trial Court, vide order, dated 10th November, 2023, has wrongly rejected their applications, as the learned trial Court has totally lost sight of the matter that the period of sixty days is to be calculated from the date of first remand given by the Court and not from the judicial remand, as held by the learned trial Court.
9. Another ground, upon which, the impugned order has been sought to be quashed, is that the applications, under Section 167 (2) CrPC moved by the applicants, have wrongly been dismissed by the learned trial Court, as report, under Section 173 (2) CrPC means the report, which includes all the documents and statements of witnesses, so relied upon by the prosecution, whereas, on 21st October, 2023, the ED has filed the complaint and at that time, no documents whatsoever were annexed with the same. According to the petitioners, the documents were filed on 31st October, 2023, as such, the report, which was filed on 21st October, 2023, was incomplete, which has resulted into the accrual of the right of the petitioners to be released on default bail.
10. Even, according to the petitioners, on 31st October, 2023, the report, under Section 173 (2) CrPC was incomplete, as, ED has filed the documents on 2nd December, 2023, in the shape of pen driver, alongwith the application, filed before the learned trial Court.
11. To buttress their contentions, the applicants have relied upon the reply, filed by the ED, in the application, filed under Section 167 (2) CrPC, before the learned trial Court.
12. On the basis of the above facts, a prayer has been made to set aside the order, dated 10th November, 2023, passed by the learned trial Court with a prayer to allow the applications, filed under Section 167 (2) CrPC, for releasing them on bail.
13. Per contra, the learned Deputy Solicitor General of India has prayed that the learned trial Court has rightly considered the factual position and passed the order, which does not require any interference, by this Court.
14. In this cas
The main legal point established in the judgment is the interpretation of the word 'shall' in Section 173(5) CrPC as directory rather than mandatory, and the distinction between 'arrest' and 'custody....
The main legal principle established is that the accused is entitled to default bail if the investigation is not completed within the mandated period, as per the legislative intent of section 167(2) ....
The non-filing of FSL report with the challan does not vitiate the challan or entitle the applicant to default bail under section 167(2) of the Criminal Procedure Code.
The completion of the investigation within the statutory period is crucial in determining the entitlement to default bail under the NDPS Act.
Non-filing of the FSL report along with the charge sheet does not render the charge sheet incomplete, and therefore, no right of default bail is accrued in favor of the accused.
Police Report submitted by police under Section 173(2) is a very important piece of document from view point of prosecution, defence and court.
(1) Default bail – An incomplete charge-sheet filed without completing investigation cannot be used to defeat right of statutory bail under Section 167(2) of Cr.P.C.(2) Default bail – Investigative a....
The absence of an FSL report does not invalidate a charge sheet under NDPS Act, affirming the right to default bail remains linked to timely completion of investigations.
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