The Delhi High Court comprising a bench of Justice Mukta Gupta has held the period of extension of custody of an accused by the reader of the court to be illegal. Moreover, the said custody was extended for 20 days as against the maximum time period of 15 days and hence bail was granted to the accused.
In the instant case, the accused was arrested for an offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (PMLA) on 5th June 2017. Since the accused was charged u/s 4 PMLA, the maximum imprisonment was seven years, the charge sheet was required to be filed within 60 days of the arrest of the accused and cognizance of the charge sheet should be taken thereon.
The period of 60 days was expiring on 4th August 2017, so the second/supplementary prosecution complaint was filed before the Special Court on 2nd August, 2017 to further extend the 60 days period. The accused/petitioner filed a Bail Application before the Hon’ble High Court of Delhi and submitted that the Special Court did not take cognizance of the supplementary complaint and simply tagged the matter with the main complaint and hence he is entitled to bail as the 60 days time period was not adhered to. Thereafter, on 8th August, the accused was remanded to custody till the 11th August and on 11th August, since the Special Court was on leave, the Reader of the court adjourned the case till the 31st August without any order of remand by the Court and passed the following order:
Ld. P.O. is on leave for today.
Sh. Vikas Garg, SPP for ED.
Accused Rohit Tandon, Raj Kumar Goel, Yogesh Mittal and
Ashish Kumar are present from J/C.
Accused Dinesh Bhola and Kamal Jain are present on bail
with their Counsel.
Put up on 31.08.2017 for purpose already fixed.
The petitioner submitted before the court that the trial court did not take cognizance of the supplementary charge sheet and that the Reader extended the custody without any remand from the court especially for a period exceeding 15 days which is illegal. The High Court heard the petitioner/accused on merits and dismissed the bail application and stated that for the fault of the court, the prosecution cannot suffer. Thereafter, the petitioner preferred an SLP and a writ petition before the Supreme Court of India which was decided along with the batch of other matters. The writ petition was filed for declaring the two additional conditions for grant of bail under Section 45 of PMLA ultra vires of Article 14 and 21 of the Constitution of India and the SC decided in favor of the writ petitioner and declared the conditions violative of Article 14 and 21.
The petitioner then filed an application for clarification before the SC regarding the dismissal of the bail order by the High Court whereby the Supreme Court remanded the case back to the High Court for reconsideration with the observation that the said order was ‘incorrect in law’.
The High Court framed the following issues for considerations to be decided:
“(i) Whether a supplementary complaint is maintainable? If yes, whether even without the leave of the Court?
(ii) Whether cognizance is required to be taken again on filing of a supplementary complaint?
(iii) If cognizance is required to be taken on the supplementary complaint whether the order passed by the learned Trial Court on 2nd August, 2017 amounted to taking cognizance?
(iv) Whether the custody of the petitioner after 11th August, 2017 is illegal, resulting in an indefeasible right to the petitioner to be released on bail? And/or
(v) Whether the petitioner is entitled to bail on merits?”
The first point of consideration was replied in the affirmative by the High Court, which after discussing various different opinions of the other High Courts observed,
“16.6 The extreme view that once a complaint is filed then a second complaint is totally barred and cognizance on the second complaint against a new accused person is illegal appears to be erroneous as once power of investigation is vested in an agency and cognizance can be taken on a complaint only then on a further investigation carried out with the leave of the court, the investigating agency is required to place on record the said material collected during further investigation and the only mode available to the investigating agency to place on record the said material is a supplementary complaint. Thus if the Court grants leave to the investigating agency to place on record further material collected, it is bound to place the same on record.”
For the second point of consideration, the court observed,
“17.2 It is thus trite law that cognizance is taken of the offence and not the offender. It is also well settled that cognizance of an offence/offences once taken cannot be taken again for the second time. Since this Court has already taken a view that a supplementary complaint on additional evidence qua the same accused or additional accused who are part of same larger transactions/conspiracy is maintainable however, with the leave of the Court and cognizance is taken of the offence/offences, not the offender and in case no new offence is made out from the additional material collected during further investigation, supporting an earlier offence on which cognizance has already been taken or additional accused are arrayed no further cognizance is required to be taken.”
For issue no. (iii) the court observed,
“18.1 Since in the present supplementary complaint no new offence was found out and it was only additional evidence in support of the offence already filed in the main complaint and evidence against additional accused, the cognizance was not required to be taken again and the order dated 2nd August, 2017 passed by the learned Special Court tagging the supplementary prosecution complaint with the main complaint cannot be held to be illegal.”
For issue no. (iv) the court discussed various Supreme Court judgments and Section 309 Cr.P.C. and observed that the date on which the High Court had heard the said Bail Application, date of filing of the additional grounds, the date of the application and the date of return, all were at the time when the custody of the petitioner/accused was illegal and hence he is entitled to be released on bail on this count itself.
For issue no. (v) the Court observed,
“20.1 Since this Court has already held that the petitioner is entitled to bail for being in illegal custody from 11th August, 2017 to 31st August, 2017 this Court need not go into the merits of the matter.”
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