TaxTMI 
TaxTMI 
2018 (1) TMI 829
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....esidential premises of the petitioner by the officers of the respondent and he was arrested on 5th June, 2017. The petitioner was produced before the learned Special Court on 6th June, 2017 and remanded to custody of the respondent till 9th June, 2017. Further custody remand of the petitioner was granted till 13th June, 2017 vide order dated 9th June, 2017 when the petitioner was sent to judicial custody. Thereafter the petitioner was remanded to judicial custody from time to time. Since for offence punishable under Section 4 PMLA sentence that could be awarded was imprisonment upto seven years, the charge sheet was required to be filed within 60 days of the arrest of the petitioner and cognizance taken thereon. The stipulated period of 60 days was expiring on 4th August, 2017, thus the second/supplementary prosecution complaint was filed before the learned Special Court on 2nd August, 2017. Before filing of the supplementary prosecution complaint, the petitioner preferred the present bail application on merits before this Court to which a counter affidavit and additional affidavit were filed by the respondent. 3. It is the case of the petitioner that on 2nd August, 2017, the le....
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....l No. 2012/2017 wherein the Hon'ble Supreme Court vide order dated 11th December, 2017 held as under: "Having heard the learned counsel appearing for the parties, we set aside the judgment and order dated 14.09.2017 of the High Court inasmuch, as after recording in paras 76 & 77 that the appellant was remanded for more than 15 days in one go and that a clear/specific endorsement was necessary and without that having been recorded, the remand was illegal, yet the Court 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 interest of 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. Application is disposed of accordingly." 7. Learned counsel for the peti....
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....March, 2017, 30th March, 2017, 3rd April, 2017, 5th April, 2017, 6th April, 2017, 7th April, 2017, 11th April, 2017 and 21st April, 2017 thus there was no requirement to arrest the petitioner. In any case the supplementary complaint also having been filed and the entire evidence being based on documents already collected by the prosecution, petitioner be released on bail. 11. Seeking dismissal of the bail application, learned counsel for the respondent contends that the supplementary complaint in the present case does not relate to a fresh offence but additional material evidence and additional accused thus warranting no fresh cognizance. The Court of Special Court being a Court of Additional Sessions Judge, the restriction of remand for a maximum period of 15 days is not provided. The petitioner has been instrumental in opening number of companies through his employees and during demonization got Rs.38 crores deposited, bank drafts whereof were got prepared besides taking their commission for the balance amount. The petitioner has been influencing the witnesses, statements in which regard of the witnesses have been recorded. 12. Before proceeding to decide the bail applicati....
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....judicial office but an administrative noting by the reader fixing the date for 31st August, 2017. 15. On the facts of the case, following issues arise for consideration before this Court: (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? 16. Issue No. (i): Whether a supplementary complaint is maintainable? If yes, whether even without the leave of the Court? 16.1 Divergent views have been taken by various High Courts in this regard. In the decision reported as Manu/JH/0515/2014 Narendra Mohan Singh vs. Directorate of Enforcement, Ranchi & Anr. a Single Judge of the Jharkhand High Court though did not discuss the provi....
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....ng agency to prosecute the offenders including the petitioner herein in the subsequent complaint along with offenders arrayed in the earlier complaint cannot be said to be a procedure which is alien to law or prejudicial to the interest of the complaint. In this regard, reference may be made to the ratio of the Apex Court in S.R. Sukumar (supra) wherein the Court held that there are limited powers to amend a complaint and in order to correct patent ex-facie errors, which do not prejudice the accused or in certain circumstances where the trial of the offence or the offenders in the subsequent complaint are to be conducted together. In the aforesaid factual matrix, I am of the view that the filing of the subsequent complaint and the prayer to proceed against the accused therein along with accused persons in the earlier complaint is in no way prejudicial to the interest of the accused persons and is, in fact, for the ends of justice and to avoid multiplicity of proceedings." 16.3 However, the Division Bench of Punjab & Haryana High Court in the decision reported as 2016(3) RCR (Criminal) 883 Arun Sharma vs. Union of India & Ors. rejecting the contention of the petitioner therein th....
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....caused serious prejudice to the accused. The first complaint which was filed in the instant case was held by the learned Additional Sessions Judge to be permitted as a complaint against the vendor and the supplier, while as the second complaint can be treated against the manufacturer and the distributor. With utmost respect to the reasoning of the learned Sessions Judge, such an interpretation is erroneous. It is not open to the Judge to contend that the first complaint is against the vendor and the supplier specifically when the manufacturer was made a party in the first complaint itself. Moreover, under the Prevention of Food Adulteration Act only one complaint is filed by the Department against all the accused persons whether they are vendors, suppliers, distributors or manufacturers. There is no provision in Cr.P.C. for filing of a second complaint which may be akin to the filing of a supplementary charge-sheet in a police case. Therefore, I feel the reasoning given by the learned Magistrate as well as the learned Sessions Judge in this regard was totally erroneous. I am of the view that only the first complaint against the petitioner was sustainable. 16.5 The Division Bench....
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....(ii): Whether cognizance is required to be taken again on filing of a supplementary complaint? 17.1 In the decision reported as 2015 (7) SCC 440 Prasad Shrikant Purohit vs. State of Maharashtra & Anr. Supreme Court dealing with the issue of cognizance on a supplementary charge sheet held: "71. Reliance was then placed upon the decision in Fakhruddin Ahmad [(2008) 17 SCC 157: (2010) 4 SCC (Cri) 478], in particular para 17. The said para 17 reads as under: (SCC p. 163) "17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and *applied his mind* to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate *applies his mind* and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in ....
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....t takes judicial notice of the offence either on a complaint or on a police report or upon information of a person other than the police officer. Taking judicial notice is nothing but perusing the report of the police officer, proceeding further on that report by opening the file and thereafter taking further steps to ensure the presence of the accused and all other consequential steps including at a later stage, depending upon the nature of offence alleged, to pass necessary order of committal to Court of Session. 74. In Salap Service Station [1994 Supp (3) SCC 318: 1994 SCC (Cri) 1713] , the question as to what is the implication of a supplementary report filed by the investigating agency under Section 173(8) CrPC was considered. While dealing with the same, it has been stated as under in para 2: (SCC p. 319) "2. ... It may be mentioned here that in the supplementary charge-sheet allegations are to the effect that there was violation of Direction 12 of the Control Order. The question of taking cognizance does not arise at this stage since cognizance has already been taken on the basis of the main charge-sheet. What all Section 173(8) lays down is that the investigatin....
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....he complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed." (emphasis supplied) The said statement of law reinforces the legal position that cognizance is always of the offence and not the offender and once the Magistrate applies his judicial mind with reference to the commission of an offence the cognizance is taken at that very moment. 76. To the very same effect is the judgment in Pastor P. Raju [(2006) 6 SCC 728: (2006) 3 SCC (Cri) 179]. Para 13 is relevant for our purpose, which reads as under: (SCC p. 734) "13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is ....
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....s the Magistrate applies his judicial mind to the suspected commission of offence, cognizance takes place. 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. 18. Issue No.(iii): If cognizance is required to be taken whether the order passed by the learned Trial Court on 2nd August, 2017 amounted to taking cognizance? 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 alrea....
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....(c) Where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examinationin-chief or cross-examination of the witness, as the case may be. 19.2 A perusal of Section 309 Cr.P.C. reveals that after taking cognizance of the offence and even after commencement of the trial if the Court finds it necessary or advisable to postpone the commencement or adjourn any inquiry or trial, it may, from time to time, for the reasons to be recorded, postpone or adjourn the same and may by a warrant remand an accused if in custody. The only limitation is that the Magistrate cannot remand an accused person to custody under this provision for a term exceeding fifteen days at a time. Though arguments have been advanced as to whether the Special Court on taking cognizance would act as a Court of Magistrate being a Court of original jurisdiction or as a Court of Sessions in which case the period of fifteen days would have no applicability however, in the f....
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....spection by Counsel for the petitioner. The order produced merely directs the adjournment of the case till the 11th March and contains no direction for remanding the accused to custody till that date. Last evening, four slips of paper were handed to the Registrar of this Court at 5-20 p.m. On one side they purport to be warrants of detention dated 6th March and addressed to the Superintendent of Jail, Delhi, directing the accused to be kept in judicial lock-up and to be produced in court on the 9th March 1953. These warrants contain on their back the following endorsements: "Remanded to judicial till 11th March, 1953." 4. In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in question, it is obvious that these documents, if genuine would be of vital importance, but they were not produced, notwithstanding the clear direction contained in our order of the 10th March. The court records produced before us do not contain any order of remand made on the 9th March. As we have already observed, we have the order of the trying Magistrate merely adjourning the case to the 11th. The Solicitor-General appearing on behalf of the Governm....
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....king through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India MANU/SC/0091/1965 : 1966CriLJ602 :. "It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of hearing". In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab MANU/SC/0073/1952 : 1952CriLJ656 and Ram Narain Singh v. State of Delhi MANU/SC/0035/1953 : 1953 CriLJ 113 a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa MANU/SC/0085/1971 : AIR 1971 SC 2197 where it was said : "In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings". and yet in another decision of this Court in Talib Husain v. State of Jammu & Kashmir MANU/SC/0202/1970: AIR1971SC62 Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that "in habeas corpus proceedings ....
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.... filed the present bail application and it came up before this Court on 15th June, 2017. During the pendency of the said bail application when according to the petitioner no cognizance was taken by the learned Special Court on the supplementary complaint, the petitioner filed an application before this Court being Crl.M.A.12920/2017 seeking permission to file additional ground for bail inter alia that no cognizance having been taken his custody was illegal which application was allowed on 11th August, 2017 in the presence of the counsel for the respondent followed by further application being Crl. M.A. No. 13800/2017 which came up before this Court on 25th August, 2017 inter alia urging that no order of remand in the eyes of law was passed on 11th August, 2017, the remand if any was beyond 15 days hence the custody of the petitioner was illegal which additional grounds were also allowed vide order dated 25th August, 2017 before the custody could be legalized on 31st August, 2017. Even the bail application in the present case was heard on 29th August, 2017, that is, the date before the custody of the petitioner became legal, hence the date of application, the date of return and the ....