TaxTMI 
TaxTMI 
2020 (8) TMI 573
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.... offence under Section ¾ of the Prevention of Money Laundering Act (in short 'PML Act') which provides maximum sentence of 7 years pending before the Court of Special Judge as he has completed maximum sentence which could have been awarded under the PML Act after adjusting the period of provisional bail. It has further been claimed that this Court should declare the detention of the petitioner in connection with the aforesaid case is against the provision of Section 20(1) of the Constitution of India and second proviso to Section 436A of the Code of Criminal Procedure. The short fact involved in this case is that on 20.3.2013, the Deputy Director, Directorate Enforcement (Prevention of Money Laundering Act), Government of India filed a Complaint Case No. 1 of 2013 in the court of Sessions Judge cum Special Judge for offence punishable under Section 3 and 4 of the PML Act alleging therein that he received a communication that the petitioner has been charge-sheeted in 17 cases of the IPC, Arms Act and Explosive Substance Act and out of them, 7 relates to scheduled offences under the PML Act. It has further been alleged that he along with co-accused Rinku Devi have accumulat....
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....erty standing in the name of his wife Smt. Rinku Devi in the following heads:- 1. Cash Rs. 5700/- 2. Deposits of Rs. 2,00,800/- in the Induslnd Bank, Exhibition Road, Patna 3. Jewellery worth Rs. 2,92,500/- 4. Immovable property (agriculture land) value of the same shown to be Rs. 3,22,000/- 5. Immovable property (Non-agricultural land) value being Rs. 26,97,695/- and Rs. 39,24,195, both situated at Saguna, Danapur. When the enquiry was conducted, it was found that the property given in the affidavit is completely wrong and false as the petitioner has acquired huge property in the shape of money as well as immovable property. It has also been found that to keep the property under cover, he purchased the same applying deceptive method, some time as Ritlal Yadav and some time, adding Prasad Ritlal Rai. As per the petitioner, cognizance has been taken under Section ¾ of the PML Act and, accordingly, the petitioner has been taken into custody since 17.2.2013 and continuing under the judicial custody except the period from 25.1.2020 to 9.2.2020 as by way of provisional bail which was allowed on account of marriage of his daughter bu....
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.... as Article 21 of the Constitution of India prescribes that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. So, the submission has been made that as the petitioner has completed outer limit of punishment which could in any circumstances be awarded and, as such, keeping the petitioner in jail custody beyond maximum period of sentence violates the protection given to every citizen of India provided under Article 20 and 21 of the Constitution of India as well as Section 436A of the Cr.P.C. Hence, he should be released forthwith honorably. In support of his submission, the petitioner has placed reliance on the judgments; Harbanslal Sahnia and Anr. Vs. Indian Oil Corpn. Ltd. and Ors. reported in AIR 2003 SC 2120, Himmatlal Harilal Mehtav Vs. The State of Madhya Pradesh and Ors. reported in AIR 1954 SC 403, Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar, reported in AIR 1979 SC 1819, Hussain & Anr. Vs. Union of India reported in AIR 2017 SC 1362. Mr. S.D. Sanjay, learned Additional Solicitor General, appearing on behalf of the Union of India submits that the present application at the threshold requi....
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....warded against the accused person under the law which was prevailing at the time of commission of the offence? 3. In what manner, the period of custody in jail would be construed and calculated as per Section 31 and Section 428 of the Cr.P.C. in the fact and circumstances of the case that the petitioner is facing criminal trial under the different cases and, in some of them, death or the life imprisonment may be awarded to the petitioner. Section 4 of the PML Act being relevant is quoted herein below:- "4. Punishment for money-laundering.-Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted." Section 3 of the Prevention of Money-Laundering Act stipulates that whosoever directly ....
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.... in view of availability of alternative remedy, the petitioner should be asked to avail the remedy under the general law. Normally, the Court would refrain to entertain the writ application if the alternative remedy is available to the parties but, having some exception in the circumstances, namely, firstly where the writ application seeks enforcement of any fundamental right, secondly where there is a failure of principles of natural justice, thirdly where the orders of the proceeding are wholly without jurisdiction or the vires of an Act is under challenge, in such circumstances, the plea of alternative remedy cannot be invoked for non-suiting the person who has approached the court with any of the aforesaid plea to substantiate his claims, reliance can be placed on the judgment of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai & Ors. reported in (1998) 8 SCC 1. In that case, the Hon'ble Apex Court explained the circumstances where in the plea of alternative will not be a ground to refuse to entertain the writ application. So, if this Court would find that the present writ application falls under any of the exceptions, in such circumstances, the present writ applicati....
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....h overtechnical nicety. It is relevant to quote paragraph nos. 11, 13, 14, 15 and 16 of the aforesaid judgment which reads as follows:- 11. Going by the aforesaid precedents, as we must, we hold that the procedural safeguards given for protection of personal liberty must be strictly followed. The history of personal liberty, as is well known, is a history of insistence on procedural safeguards. Following the said principle, we find that delay in these cases is for a much longer period and there is hardly any explanation. We, therefore, have no hesitation in quashing the orders of detention on the ground of delay on the part of the Central Government in disposing of the representation of the detenus. 13. Taking up the second objection first, we find that the question of delay was urged before the High Court as it appears from pp. 6 and 7 of the impugned judgment. But, insofar as the question of technical plea which has been raised by the learned counsel on the question of prayer in the habeas corpus petition is concerned, we are constrained to observe that in dealing with writs of habeas corpus, such technical objections cannot be entertained by this Court. ....
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....tion of sales tax on the appellant in Madhya Pradesh is without the authority of law and that being so, a threat by the State by using the coercive machinery of the impugned Act to realize it from the appellant is sufficient infringement of his fundamental right under Article 19(1)(g) and it was clearly entitled to relief under Article 226 of the Constitution of India. So, in that case, the provision has been declared ultra vires, the Court has mandated the maintainability of the writ application which has been dealt with in paragraph no.9 of the said judgment. In view of the aforesaid judgments, it is very much clear that there is no absolute bar to entertain the writ application in the event of availability of alternative remedy subject to the condition mentioned herein above. If the issue falls under the aforesaid heading then the alternative remedy cannot be invoked as a bar for entertainment of the writ application and the court would adjudicate the dispute raised by the parties. As all the questions framed herein above are interconnected to each other, this Court would like to deal with the aforesaid questions in an integrated manner. For arriving to a right conclusion,....
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....n instrument in opposition to the king's "divine right to incarcerate people," there were many other constables and other authorities during those times, who imprisoned people for various reasons. Accordingly, habeas corpus also developed as the king's role to demand account for his subject who is restrained of his liberty by other authorities. Deeply rooted in the Anglo-American jurisprudence, the law of habeas corpus was adopted in the U.S. as well, by the early Founding Fathers. James Madison, in 1789, argued for the adoption of the Bill of Rights, including Habeas Corpus. The fourth Chief Justice of the U.S. Supreme Court, Chief Justice Marshall, emphasized the importance of habeas corpus, writing in his decision in 1830, that the "great object" of the writ of habeas corpus "is the liberation of those who may be imprisoned without sufficient cause." The U.S. Supreme Court has recognized that the "writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action" and must be "administered with the initiative and flexibility essential to ensure that miscarriages of justice within its reach are surfaced and corre....
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....sheet in three criminal cases were filed against him in the court of Judicial Magistrate, Bhubaneshwar and, inasmuch as, he was convicted in another case for offence under Sections 419, 420, 466 to a different terms of imprisonment. He was brought from Sikandarabad on account of issue of warrant by the Sub Divisional Officer, Bhubaneshwar and was produced before the Magistrate, 1st Class on the day of arrival. As the S.D.O. concerned was absent, he was remanded to judicial custody from time to time. The Court has opined in the following terms:- "This Court does not, as a general rule, go into such controversies in proceedings for a writ of habeas corpus. Such a writ is not granted where a person is committed to jail custody by a competent Court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case." The Court has further observed in the following terms:- "We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent Court then too writ of habeas corpus cannot be granted. This position is well settled." In the....
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....umstances, instead of moving for writ of habeas corpus, he should have moved for bail before the court concerned. The objection which raised was accepted. It is relevant to quote paragraph no.22 of the said judgment which reads as follows:- "22. The only question with which we are concerned within the above backdrop is whether the petitioner can be said to be in the unlawful custody. Our answer to that question is in the negative. The record which we have carefully perused shows that the petitioner is an accused facing prosecution for the offences, cognizance whereof has already been taken by the competent court. He is presently in custody pursuant to the order of remand made by the said Court. A writ of habeas corpus is, in the circumstances, totally misplaced. Having said that, we are of the view that the petitioner could and indeed ought to have filed an application for grant of bail which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in thi....
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....e event of order of remand. It is relevant to quote paragraph nos. 17, 18, 19, 20.1, 20.2, 20.3, 21 & 22 of the aforesaid judgment which reads as follows:- "17. For considering whether the writ petitioners were entitled to any interim relief, two questions were framed by the High Court in paragraph 15 of its Order. Before considering the matter from the perspective of said two questions, an issue which was stressed by the learned Solicitor General may be addressed first. It was submitted by him that the date with reference to which the legality of detention can be challenged in a Habeas Corpus proceeding is the date on which the return is filed in such proceedings and not with reference to the initiation of the proceedings. He relied upon the decision of the Federal Court in Basanta Chandra Ghose vs. King Emperor1, which had concluded: "... ...If at any time before the Court directs the release of the detenue, a valid order directing his detention is produced, the Court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention.... ..." 18. Similar questions arose for consideration in Naranjan Singh Nath....
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...., for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr Justice Dua in B.R. Rao v. State of Orissa, "concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus". Now the writ petition in the present case was filed on January 6, 1973 and on that date the petitioner was in detention in the Central Jail, Vizakhapatnam. The initial detention of the petitioner in the District Jail, Darjeeling had come to an end long before the date of the filing of the writ petition. It is, therefore, unnecessary to examine the legality or otherwise of the detention of the petitioner in the District Jail, Darjeeling. The only question that calls for consideration is whether the detention of the petitioner in the Central Ja....
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....efore, be said to be illegal and his subsequent detention in the Central Jail, Visakhapatnam, pursuant to the orders made by the Special Judge, Visakhapatnam, pending trial must be held to be valid. This Court pointed out in Col. B. Ramachandra Rao v. State of Orissa7 (SCC p. 258, para 5) that a writ of habeas corpus cannot be granted "5. ... where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal".' 21. The principle laid down in Kanu Sanyal, thus, is that any infirmity in the detention of the petitioner at the initial stage cannot invalidate the subsequent detention and the same has to be judged on its own merits. 22. At this juncture, we may profitably refer to the Constitution Bench decision in Sanjay Dutt v. State through CBI, Bombay (II) 10 wherein it has been opined thus: (SCC p. 442, para 48) "48. ... It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the cus....
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....his Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao and Kanu Sanyal9, the court is required to scrutinise the legality or otherwise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute illegality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, ....
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....and indeed ought to have filed an application for grant of bail which prayer could be allowed by the court below, having regard to the nature of the offences allegedly committed by the petitioner and the attendant circumstances. The petitioner has for whatever reasons chosen not to do so. He, instead, has been advised to file the present petition in this Court which is no substitute for his enlargement from custody." 20. 3 A Bench of three learned Judges of this Court in State of Maharashtra and Others vs. Tasneem Rizwan Siddiquee concluded as under: (SCC pp. 751-52, paras 1012) "10. The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police 12 (2018) 9 SCC 745 custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in Saurabh Kumar v. Jailor, Koneila Jail and Manubhai Ratilal Patel v. State of Gujarat. It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18-3-2018/19-3-2018 and decided by the High Court on 21-3-2....
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....ave been loath to enter upon the merits of the arrest in the absence of any challenge to the judicial order passed by the Magistrate granting police custody till 23-3-2018 and more particularly for reasons mentioned in that order of the Magistrate. In a somewhat similar situation, this Court in State represented by Inspector of Police and others v. N.M.T. Joy Immaculate deprecated passing of disparaging and strong remarks by the High Court against the investigating officer and about the investigation done by them. Accordingly, we have no hesitation in expunging the observations made in paras 4 to 6 of the impugned judgment against the police officials concerned in the facts of the present case." 21. The act of directing remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition. The first question posed by the High Court, thus, stands answered. In the present case, as on the date when the matter was considered by the High Court and the Order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there wa....
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....or the Writ Petitioner such an extension could not cure the inherent defect and as such, the High Court was justified in entertaining the petition. We may deal with this issue after considering the second question posed by the High Court in said paragraph 15." Learned counsel for the Union of India has placed reliance on another judgment passed in the case of The Home Secretary (Prison) & Ors. Vs. H. Nilofer Nisha reported in 2020 SCC Online 73. In this case, the respondent was life convict, made a prayer for remission and release as per the notification of the State Government. The High Court has passed the order for release but, the Hon'ble Apex Court set aside and held that habeas corpus is not maintainable, direction was given to file application before the Government which will look into the matter and pass the order. While dealing with the matter, the Hon'ble Apex Court has held that the writ of habeas corpus is available as a remedy in all cases where a person is deprived of his personal liberty. It is the processual writ to secure liberty of the citizen from unlawful and unjust detention whether a person is detained by State or is in private detention. As per Justice Hid....
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....ody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal and we are not satisfied that the present is not such a case." 24. In Kanu Sanyal v. District Magistrate, Darjeeling this Court while dealing with the writ of habeas corpus has held as follows: "4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty...." 25. In Manubhai Ratilal Patel v. State of Gujarat, an order of remand was challenged before this Court. After referring to a large number of judgments, which we are not referring in detail since they have all been considered in this judgment, this Court held as follows: "31....It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or....
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....t is why it is stated in Section 12(4) of the old Act "so far as may be in accordance with the procedure prescribed in the code for the trial before a Court of Session". Thus, the procedure set out in this Act overrides the procedure in the Criminal Procedure Code and as far as may be, the procedure in the Code is taken for the limited purpose mentioned in the Act. If the orders of adjournments and remand are not in accordance with Section 309 of the Criminal Procedure Code, it is open to the party aggrieved to apply to the Court for necessary relief, either for grant of bail or for getting directions for a speedy trial. The Section 16 of the Act of 1985 (Section 19 of the Act of 1987) specifically mentions that no appeal or revision shall lie to any Court from any judgment, sentence or order of a Designated Court except to the Supreme Court The provision in this self contained Act, when there is especially a decision of the Supreme Court (Usman's case, supra), prohibiting any revision or appeal before the High Court under Section 439 or Section 482 of the Criminal Procedure Code, cannot be circumvented by invoking the jurisdiction of this Court under Article 226 of the Constit....
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....ne Marmesh, Son of Ganesh Yadav. One of the question was framed as to whether an order of remand passed by the Judicial Magistrate could be reviewed in a petition seeking the writ of habeas corpus holding judicial order of remand to be illegal detention. The Full Bench has considered different judgments and in paragraph no. 80 has held that in view of the above discussion, the Court could not exercise power under Article 226 & 227 of the Constitution of India and further held that under Section 483 Cr.P.C., the High Court would not be justified in issuing a general direction to all Magistrate and Judicial Magistrate of the State for release of such women and permitting them to go along with the person of their choice who are minor and brought before the Magistrate with a statement of having married somebody of their own volition. It is relevant to quote paragraph nos. 76, 77 and 78 of the aforesaid judgment which reads as follows:- "76. A three-judge Bench of the Supreme Court in TGN Kumar vs. State of Kerala & Ors.(supra) while answering the question posed by the two-judge Bench, in paras 13, 21 and 22 held as follows : "13. Similarly, while it is true that th....
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....inuous superintendence of the High Court under Section 483 of the CrPC over the courts of Judicial Magistrates subordinate to it is with a view to ensure that there is an expeditious and proper disposal of cases by such Magistrates. The power of superintendence conferred on the High Court under Article 227 of the Constitution of India or under Section 483 of the CrPC is both administrative and judicial, but such power should be exercised sparingly and only in appropriate cases. Such power cannot be exercised to influence the subordinate judiciary to pass any order or judgment in a particular manner. The power of superintendence exercised over the courts of judicial Magistrates does confer jurisdiction upon the High Court to intervene in functions of the subordinate judiciary, whose independence is of paramount importance in the discharge of its judicial functions. 78. In Dharmeshbhai Vasudevbhai & Ors. vs. State of Gujarat& Ors., [(2009) 6 SCC 576], the Supreme Court has held that the High Court, apart from exercising its supervisory jurisdiction under Article 227 of the Constitution of India, has a duty to exercise continuous superintendence over the Judicial Magistrates ....
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....sentences of imprisonment may be consecutive, these under trial prisoners, mentioned in the list of Mrs Hingorani, have already suffered incarceration for the maximum period for which they could have been sent to jail on conviction. There is absolutely no reason. why they should be allowed to continue to remain in jail for a moment longer, since such continuance of detention would be clearly violative not only of human dignity but also of their fundamental right under Article 21 of the Constitution. We, therefore, direct that these under trial prisoners be released forthwith." Though the Hon'ble Apex Court has not granted relief to the petitioner as it was found that she has not suffered the jail custody more than the sentence which could have been awarded in different cases but, the principle has been delineated that the person cannot be detained in jail custody beyond the maximum period of sentence could be awarded in multiple cases. If he has remained for maximum period in jail custody, he cannot be kept confinement even for a single day, beyond the maximum limited he could have been put to jail custody. So, Article 21 of the Constitution of India comes into full play which r....
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.... to undergo imprisonment on such conviction shall be restricted to the remainder, any, of the term of imprisonment imposed on him. [Provided that in cases referred to in section 433-A, such period of detention shall be set of against the period of fourteen years referred to in that section.]" Section 31 of the Cr.P.C. stipulates that when a person is convicted at one trial of two or more offences, the Court may, subject to provisions of Section 71 of the I.P.C., sentence him for such offences, to the several punishments prescribed therefore which such Court is competent to inflict; such punishment when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently. So this provision makes it clear that while passing the order in different penal provision, different punishment is provided, it will run consecutively subject to the order passed by the court concerned to run concurrently. Section 428 deals with in what manner the accused will be granted benefit of set off in the event he has been made accused of several criminal cases which prescrib....
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.... reduced by the extent of detention already undergone by the convict during investigation, enquiry or trial of the same case. It is quite clear that the period to be set off relates only to pre conviction detention and not to imprisonment on conviction. 15. Let us test the proposition by a concrete example. A habitual offender may be convicted and sentenced to imprisonment at frequent intervals. If the period of pre-trial detention in various cases is counted for set-off in respect of a subsequent conviction where the period of detention is greater than the sentence in the subsequent case, the accused will not have to undergo imprisonment at all in connection with the latter case, which could not have been the intention of the legislature while introducing Section 428 in the Code in 1973." The issue of calculation of period of sentence and set off came for consideration in the case of Prabhu Sah Vs. State of Bihar & Ors. reported in 2011 (4) PLJR 641. Section 428 of the Cr.P.C. has been interpreted in the manner that the principle of set off will be applicable, the period spent in investigation, enquiry and trial as it will run concurrently for all multiple cases but, t....
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.... in the present case has to be upheld. The remand period in the third case when he was already undergoing life imprisonment consequent to his conviction in the second case cannot inure to his benefit in terms of Section-428 Cr.P.C. That is the latest dictum of the Apex Court after noticing all the earlier case in the case of Atul Manubhai Parekh (supra). 32. In view of this recent judgment of the Supreme Court by which we are bound, it is not necessary to refer to the two Division Bench judgments of this Court being in the case of Shambhu Nath Singh (supra) and in the case of Hari Shankar Sah (supra) which followed the judgment in Najakat Alia Mubarak Ali (supra), which has been considered by the Apex Court in the recent decision namely Atul Manubhai Parekh (supra) aforesaid. 33. In that view of the matter, the contention of the petitioner for an early release merits no consideration." On conspectus of the aforesaid judgments, this Court has to decide in the present case as to whether the petitioner is essential to be released from jail custody as the petitioner has claimed in the present writ application of habeas corpus that he has been proceeded under the Pr....