SOUVIK BHATTACHARYA    [APPELLANT(S)]  Vs.   ENFORCEMENT DIRECTORATE    [RESPONDENT(S)]

CRIMINAL APPEAL Arising out of SLP(Criminal) No.14476 of 2023

(2JB, BELA M. TRIVEDI and PANKAJ MITHAL JJ.)

Facts: 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 CrPC. 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. 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 1 dated 18.10.2023. Being aggrieved by the same, the appellant has approached this Court by way of present appeal.

Issue: Whether accused can be taken into custody when he voluntarily surrenders before the court?

Arguments on behalf of counsel for appellant:

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.

Arguments on behalf of counsel for respondents:

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. 2 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.

Held: The court allowed the present appeal and held that, “In the instant case though there was no order passed by the Special Court for issuance of summons or warrant against the appellant, a summons under Section 61 came to be issued on 22.12.2022 requiring the appellant to appear before the Special Court on 07.01.2023. The appellant appeared before the Special Court and applied for his release on bail. Since there was no order passed by the Special Court for issuance of the summons or warrant, in our opinion, the application of the appellant seeking bail could not have been entertained. There was a basic flaw in the proceedings conducted before the Special Court. It is not disputed by the learned ASG Mr. Raju that the appellant was not arrested during the course of investigation and also when the prosecution complaint was filed before the Special Court. As such Section 437 would come into play when the accused is arrested or detained or when the summons or warrant is issued against the accused for causing him to be brought or to appear before the Court. In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor he could have been arrested or taken into custody. The appellant-accused also appears to have filed the bail application before the Special Court under the misconception of fact and misconception of law, which application came to be dismissed by the Special Court. Though the said issue was not specifically raised by the appellant before the High Court, the said question being the question of law, we have permitted the counsel for the appellant to be raised in the instant appeal.”