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2018 (1) TMI 534
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....d. Background facts 2. The background facts are that the aforementioned FIR No.205/2016, dated 25th December 2016 was registered with the Crime Branch, Delhi Police under Section 420/406/409/467/468/471/188/120 Indian Penal Code ('IPC'). In the said FIR, after conclusion of the investigation, a final report No.1 dated 24th June 2017 was filed, alleging different offences against different accused persons who were named in Column 11 of the said final report. The name of Petitioner, Yogesh Mittal, did not figure in Column 11 of the final report. However, in para 79 of the said report, it was stated as under: "Further investigation is in progress. FSL Report is awaited. If more evidence comes on record against the above accused, same shall be filed before the Hon'ble court through supplementary charge sheet Investigation against Yogesh Mittal and/or his other associates is also in progress and a supplementary charge sheet will be filed against them." 3. It must also be noticed at this stage that, as noted in para 78 of the aforementioned final report, one of the accused in the aforementioned case, Rohit Tandon, was already in judicial custody in a case instituted again....
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....l Bureau of Investigation v. Anupam J. Kulkarni (1992) 3 SCC 141. The Supreme Court in that case explained that while the police custody could not exceed 15 days, the remaining custody had to be a judicial custody and the total period of custody cannot exceed 90 days. It was observed as under: "Taking the plain language into consideration particularly the words "otherwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days." 8. It was further explained by the Supreme Court in Central Bureau of Investigation v. Anupam J. Kulkarni (supra) as under: "The proviso to Section 167 (2) clearly lays down that the total period of detention should not exceed ninety days in cases where the investigation relates to serious offences mentioned therein and sixty days in other cases and if by that time cognizance is not taken on the expiry of the said periods the accused shall be released on b....
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....atory provision of Sec. 44(c) of Prevention of Money Laundering Act 2002, the present case stands committed/transferred to the Court of Sh. A.K. Kuhar, learned Special Judge (PMLA), Saket Courts, New Delhi with a direction to produced the accused persons on 16.10.2017 as another case filed by the Enforcement Directorate against the accused persons is pending trial in the said Court which is the designated Court constituted under PMLA. Ahlmad is directed to place the case file before the learned District & Sessions Judge (HQs), Delhi on 12.10.2017 with a request to send the case file to the Court of Sh. A.K. Kuhar, learned Special Judge (PMLA), Saket Court, New Delhi through District & Sessions Judge (South), Saket Court, New Delhi." 12. On 12th October 2017, the learned District Judge (HQ), Tis Hazari passed the following order: "12.10.2017 Present: None for either of the parties. File has been received from the Court of Ms Hemani Malhotra. Ld. Special Judge/PC Act. Perused. In view of the observations made, the instant case is withdrawn from the Court of Ms Hemani Malhotra, Ld. Special Judge (PC Act) to be placed before the Court, New Delhi on 17.10.2017 at 2.....
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.... October 2017. On 16th October 2017, the Petitioner filed a bail application before the learned Special Judge (PMLA), Saket Court seeking default bail under Section 167(2) CrPC. According to the Petitioner, the Special Judge (PMLA) was the only competent Court which could take cognizance of the offence. 15. The Petitioner's bail application was taken on board by Special Judge (PMLA) and posted for hearing on the following day, i.e. 17th October 2017. At 2.38 pm on 17th October 2017, the District Judge, Saket Courts passed an order acknowledging that the "file had been received from Shri Talwant Singh learned District and Sessions Judge (HQs), Delhi vide order dated 12.10.2017". The said order also acknowledged that on 16th October 2017, the Petitioner had filed an application under Section 167(2) Cr PC which had been posted for that day, i.e. 17th October 2017. It was noted that thereafter, at 10 am on 17th October 2017, "one hand written application for acceptance of bail bonds was filed" on behalf of the Petitioner. 16. It appears that it was only thereafter that the entire case was assigned to the Special Judge (PMLA) by the District Judge, South East, Saket Courts by the ....
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....ence for which the FIR No.205/2016 was registered was taken by a competent Court on 24th June 2017. The supplementary charge-sheet was also for the same offences for which cognizance was already taken. Therefore, the Special Judge (PC Act) was competent to take cognizance of the offences mentioned in the supplementary charge-sheet as well. (ii) Even if the Special Judge (PC Act) had transferred the case by the order dated 10th October 2017 to the Special Judge (PMLA) since the offences for which the FIR No.205/2016 was registered were mentioned to the Schedule of PMLA, the competence of the Special Judge (PC Act) to take cognizance of the offences did not cease. The word 'empowered' in Section 173 (2) Cr PC refers to the inherent jurisdiction of the court where a charge-sheet had been filed. (iii) Admittedly, the charge-sheet was filed on 14th October, 2017 in the competent Court before the expiry of 90 days. Therefore, the Petitioner was not entitled to bail under Section 167 (2) Cr PC. Submissions on behalf of the Petitioner 19. Mr. Vikram Chaudhary, the learned Senior Counsel appearing for the Petitioner, submitted that till date no cognizance had been taken of the o....
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.... were unsustainable in law and ought to be set aside by this Court. He pointed out that since the continued detention of the Petitioner beyond the permissible period of 90 days is illegal, the Petitioner is entitled to maintain the present petition for a writ of habeas corpus. Submissions on behalf of the ED 23. Countering the above submissions, Mr. Rahul Mehra, the learned Senior Standing Counsel for the State, submitted that cognizance of the offence was to be taken only once and in this case it had been taken by the proper court on 24th June 2017, i.e. the Special Judge (PC Act). It was further submitted that cognizance was taken not of the offender but of the offence. He argued that there was no need for cognizance of the offences to be again taken separately qua the Petitioner upon the filing of a supplementary charge sheet whereby additional accused persons may be named in the same offence. In this regard, reliance was placed upon the decisions in Mona Panwar v. High Court of Judicature (2011) 3 SCC 496; Prasad Shrikant Purohit v. State of Maharashtra (supra). 24. It was further submitted by Mr Mehra that the Investigating Agency was ready to file the charge sheet on....
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....g the accused to be kept in judicial lock up and produced in the Court on 9th March 1953. The endorsements made on the reverse side of those warrants were to the effect that the accused were to be "remanded to judicial till 11th March 1953". 25.4 The Supreme Court noted that there was no order of remand made on 9th March 1953. There was only an order adjourning the case to 11th March 1953. The Supreme Court refused to take notice of the slips of paper presented to the Registrar at 5.20 pm on 11th March 1953. It observed that the continued detention of the Petitioners was without any formal order of remand and therefore the Court is to have regard to the legality of the detention at the time of filing of the reply by the State and not with reference to the institution of proceedings. 25.5 The Supreme Court further held that the material date in this case was 10th March 1953, when the affidavit of the Government justifying the detention of the four accused as lawful was filed. However, it was noted that on the date there was no order remanding the four accused to custody. It was observed as under: "This Court has often reiterated before that those who feel called upon to dep....
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....08. Other Appellants were thereafter arrested. On 20th November 2008, approval was given under the Maharashtra Control of Organized Crime Act, 1999 ('MCOCA') and on 15th January 2009, sanction was also granted thereunder. 27.6 The Special Judge (MCOCA) had passed an order of discharge on 31st July 2009 on the footing that the prerequisite for invocation of MCOCA, i.e. cognizance of two earlier cases within 10 years preceding the date of the third occurrence (29th September 2008), was not satisfied. This was because the supplementary charge sheets qua the Appellant therein were filed only on 13th November 2008 and 15th November 2008, after the last date 29th September 2008. 27.7 The High Court took a different view. It was held that the Special Judge had misdirected himself by stating that the cognizance was with reference to the offender and not the offence. Therefore, the order of discharge was set aside. 27.8 Aggrieved by the above order of the High Court, the Appellants came before the Supreme Court wherein the two central questions considered were: "(i) Whether the common order of the Division Bench dated 197-2010 setting aside the discharge order of the Special Jud....
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....izance gets fulfilled at that very moment. Further the very fact that proceedings pertaining to Parbhani and Jalna were pending before the Magistrate where such proceedings were initiated by the filing of the police report till the occurrence in Malegaon took place itself was sufficient to demonstrate that judicial mind was very much applied to the proceedings based on the police report consequent upon cognizance taken. (.....) 66. We are now pitted with the question as to whether the taking of cognizance of the offence by the competent court under Section 2(1)(d) of MCOCA is referable only to the Court of Sessions or even to a Magistrate of First Class under Section 190 CrPC. In this context, when we read Section 2(1)(d) of MCOCA along with Sections 190 and 193 CrPC, in the absence of any specific stipulation either under Section 2(1)(d) of MCOCA or any other provision under the said Act in the ordinary course of interpretation it can be validly stated that on fulfilment of Section 190 CrPC, when a Judicial Magistrate of First Class or an empowered Second Class Magistrate, takes cognizance of any offence that would fulfil the requirement of Section 2(1)(d) relating to compet....
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.... supplementary charge-sheet further offence may also be alleged and charge to that effect may be filed. In fact, going by Section 173 (8) it can be stated like in our case by way of supplementary charge-sheet some more accused may also be added to the offence with reference to which cognizance is already taken by the Judicial Magistrate. While cognizance is already taken of the main offence against the accused already arrayed, the supplementary charge-sheet may provide scope for taking cognizance of additional charges or against more accused with reference to the offence already taken cognizance of and the only scope would be for the added offender to seek discharge after the filing of the supplementary charge-sheet against the said offender." (emphasis supplied) 28. In this context, reference may also be made to a recent decision of the Supreme Court Sarah Mathew v. Institute of Cardio Vascular Diseases (2014) 2 SCC 62 on the question of a Magistrate taking 'cognizance' where it was observed as under: "34. Thus, a Magistrate takes cognizance when he applies his mind a or takes judicial notice of an offence with a view to initiating proceedings in respect of offence which ....
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..... on or before 16th October 2017 in the competent court, failing which, he would be entitled to statutory bail. In the present case, the 'competent court' is that Court which could have taken cognizance of the offences qua the Petitioner. 33. The Special Judge (PC Act) did have the jurisdiction to take cognizance of the offences under the PC Act and IPC. However, once the case was transferred from that court on 10th October 2017 with a clear direction that the charge sheet was to be filed only in the court of the Special Judge (PMLA), the learned Special Judge (PC Act) could not have thereafter entertained any further request by the CBI. As far as the present case is concerned, after 10th October 2017, the Special Judge (PC Act) should be held to have become functus officio qua this case. 34. There was no question of the Special Judge (PC Act) taking on board, after 10th October 2017, any supplementary charge sheet with regard to FIR No.205/2016. For the purpose of Section 167 (2) Cr PC, the investigation qua the Petitioner was complete only when the supplementary charge sheet was filed in the jurisdictional court. The court of the Special Judge (PC Act) ceased to have jurisd....
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....went on to state that for the fault of the Court, the prosecution cannot be made to suffer. Another major departure from settled procedure was that the order of remand was permitted to be recorded by the Reader of the Court which would, according to the High Court, only be an irregularity and not an illegality, which is obviously incorrect in law. We are, therefore, of the considered view that, in the justice, this order is set aside and the matter is remanded for hearing afresh by the High Court. All contentions are kept open to both the parties. We request the High Court to decide the matter as expeditiously as possible." 38. Clearly, therefore, the Supreme Court did not accept the plea of the ED in the Petitioner's own case i.e. in the PMLA case that the ED cannot be made to suffer for the fault of the Court. Equally, therefore, as far as the present FIR No.205/2016 is concerned, the prosecution cannot be heard to say that it should not suffer for the failure of the file reaching the Court which had jurisdiction, namely, the PMLA Court. 39. For all of the aforementioned reasons, the Court disagrees with the learned Special Judge, PMLA that since the charge sheet had alr....