Allahabad High Court
Yadav Singh vs Union Of India Thru. Directorate Of ... on 3 July, 2017
Bench: Ramesh Sinha, Rekha Dikshit
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 9 AFR Case :- U/S 482/378/407 No. - 2962 of 2017 Applicant :- Yadav Singh Opposite Party :- Union Of India Thru. Directorate Of Enforcement & Anr. Counsel for Applicant :- Purnendu Chakravarty,Vishal Tahlani Counsel for Opposite Party :- Govt. Advocate,A.S.G.,Shiv P. Shukla Hon'ble Ramesh Sinha,J.
Hon'ble Mrs. Rekha Dikshit,J.
1. Heard Sri Purnendu Chakravarty, learned counsel for the applicant, Sri Shiv P. Shukla, learned counsel for Union of India and perused the impugned order as well as material brought on record.
2. This 482 Cr.P.C. application has been filed by the applicant with the prayer to quash the impugned order dated 2.5.2017 passed by In-charge Sessions Judge, Lucknow in Bail Application No.1930 of 2017, under Section 3/4 PMLA (Yadav Singh Vs. Enforcement Directorate), Complaint Case No.3501 of 2017 and pass necessary orders for release of the applicant.
3. Brief facts of the case are that the applicant who is involved in the present case was produced before the Special Judge, Prevention of Money Laundering Act, Lucknow (here-in-after referred to as the 'PMLA') on 27.2.2017, who sent the applicant in judicial custody for the offence under Section 3/4 of PMLA, 2002 and he was remanded to judicial custody. The investigation was being carried out by opp. party no.1, Directorate of Enforcement, Prevention of Money Laundering Act, opp. party no.1. The statutory period of filing the complaint by opp. party no.2 under Section 3/4 of PMLA, 2002 is 60 days which expired on 29.4.2017 and 30.4.2017 was Sunday and when the same was not filed on 1.5.2017, an application under Section 167(2) Cr.P.C. was filed by the applicant before the Special Judge, PMLA/Sessions Judge, Lucknow for releasing the applicant on bail under the provisions of Section 167(2) Cr.P.C., as he was ready to furnish bail bonds and abide by terms and conditions for bail. The said application was sent to the Court of Special Judge, C.B.I., Court No.2 as the In-charge Special Judge, PMLA/Sessions Judge, Lucknow was not present on 1.5.2017, the said application was presented by the Sessions Clerk before the Court of Special Judge, CBI, Court No.2 for its hearing and when the counsel for the applicant made his submissions for release of the applicant under Section 167(2) Cr.P.C., the Special Judge, C.B.I., Court No.2 did not pass any orders on the same but posted the matter for 2.5.2017 for hearing. On 2.5.2017, the matter was placed before the In-charge Special Judge, PMLA, Lucknow, i.e., Special Judge, C.B.I. (Ayodhya Matters), who called for a report from the office of Special Judge, PMLA/Sessions Judge, Lucknow on the application of the applicant and it was informed by the Sessions Clerk that a complaint has been filed against the applicant by opp. party no.1 on 2.5.2017 and the matter was posted for hearing at 2 P.M. The matter was taken up at 2 P.M. by Special Judge, CBI (Ayodhya Matters)/In-charge- Special Judge, PMLA,Lucknow who after hearing the learned counsel for the parties and observing that a complaint has been filed being Complaint Case No.3501 of 2017, rejected the application under Section 167(2) Cr.P.C. of the applicant by passing the impugned order, hence, the present 482 Cr.P.C. application has been filed by the applicant before this Court for quashing of the said impugned order.
4. It has been contended by learned counsel for the applicant that the statutory period for filing of a complaint under Section 3/4 of PMLA, 2002 against the applicant was 60 days and as the applicant has been sent to judicial custody by the Special Judge, PMLA, Lucknow 27.2.2017 and complaint has not been filed within the statutory period of 60 days, i.e., till 29.4.2017 and 30.4.2017 being Sunday, an application was filed by the applicant on 1.5.2017 for releasing him on bail under the provisions of Section 167(2) Cr.P.C. as he is ready to furnish bail bonds and abide by terms and conditions for bail. He argued that learned Special Judge, PMLA has rejected the application of the applicant by passing the impugned order, which is wholly illegal on the ground that on 1.5.2017 on which date the applicant had filed an application under Section 167(2) Cr.P.C. before the Special Jude, PMLA/Sessions Judge, Lucknow, no complaint was filed by opp. party no.1 and on 2.5.2017 at 2 P.M. when the matter was taken up by In-charge Special Judge, PMLA, Lucknow, a report was called by the In-charge Special Judge, PMLA/CBI Court (Ayodhya matters) from the Sessions Court, it transpired that a complaint has been filed against the applicant, hence, his application was rejected. He further submitted that indefeasible right accrues to the applicant on the failure of the prosecution to file Challan within the specified period under Section 167(2) Cr.P.C. which was declined by the In-charge Special Judge while rejecting the application of the applicant, which is against the established proposition of law and is liable to be set aside by this Court. In support his argument, learned counsel for the applicant has placed reliance on a judgment of the Apex Court in the case of Udai Mohan Lal Achyarya Vs. State of Maharashtra, reported in 2001 SCC (Crl), 760 and Pragya Singh Thakur Vs. State of Maharashtra, 2012 reported in SCC (Crl.) 311 and 2014 and Union of India through CBI Vs. Nirala Yadav @ Raja Ram Yadav @ Dipak Yadav reported in (2014) SCC 457. He submitted that the case of the applicant is squarely covered by the aforesaid judgments and the applicant is entitled to be released on bail under the provisions of Section 167(2) Cr.P.C.
5. Learned counsel for Union of India, opp. party no.1 on the other hand, has refuted the arguments advanced by learned counsel for the applicant and opposed the prayer for quashing of the impugned order dated 2.5.2017 and submitted that the order passed by the In-charge Special Judge, PMLA is absolutely correct and does not suffer from any illegality. He further submits that once a complaint has been filed against the applicant under Section 3/4 of PMLA, 2002, the applicant had no right to be released on bail under Section 167(2) Cr.P.C. In support of his argument learned learned AGA has placed reliance upon a judgment of the Constitution Bench of five Judges of the Apex Court in the case of Sanjay Dutt Vs. State through CBI Bombay reported in (1994) SCC 410 and has drawn the attention of this Court towards para-48 of the said judgment. He has further submitted that the other case laws which have been relied upon by learned counsel for the applicant is distinguishable from the facts and circumstances of the present case.
6. Considered the submissions advanced by learned counsel for the parties. It appears from the record that the applicant was remanded to judicial custody on 27.2.2017 by Special Judge, PMLA, Lucknow and period of 60 days for filing a complaint under Section 3/4 of PMLA has expired on 29.4.2017 and 30.4.2017 being Sunday, an application under Section 167(2) Cr.P.C. was moved by the applicant on 1.5.2017 before the Special Judge, PMLA/Sessions Judge, Lucknow and the said application of the applicant came up before the Special Judge, CBI Court No.2 on account of the fact that the In-charge Special Judge, PMLA/Sessions Judge was not present on 1.5.2017 and when the matter was taken up, the Special Judge, CBI, Court No.2 did not pass any order on the said application and posted the matter for 2.5.2017 for hearing. On 2.5.2017, the matter was taken up by the Special Judge, CBI (Ayodhya Matters) being the In-charge Judge, PMLA, on which a report was called for by the Sessions Clerk regarding of any complaint and the matter was posted at 2.00 P.M. for hearing. The record further transpires that at 2.00 P.M. when the Special Judge, CBI (Ayodhya Matters) was hearing the application of the applicant under Section 167(2) Cr.P.C., it was brought on record that a complaint has been filed against the applicant under Section 3/4 of PMLA, hence, he rejected the said application of the applicant after hearing the learned counsel for the parties on the ground that a complaint has been filed against the applicant, he is not entitled to be released on bail under Section 167(2) Cr.P.C.
7. The contention of learned counsel for the applicant that on 1.5.2017 the applicant had moved an application under Section 167(2) Cr.P.C. with a prayer that as the statutory period of filing a complaint has elapsed and no complaint has been filed against the applicant and in default of the same, the applicant be released on bail as he is ready to furnish bail bonds and abide by terms and conditions for bail and in view of law laid down by the Apex Court in the case of Udai Mohan Lal Achyarya Vs. State of Maharashtra (supra), the applicant is entitled to be released on bail under Section 167(2) Cr.P.C. and the impugned order be quashed,is not sustainable in the eyes of law, as the date on which the application under Section 167(2) Cr.P.C. of the applicant was being heard by the Court, a complaint under the 3/4 PMLA has already been filed, i.e., on 2.5.2017 and the trial Court has rightly rejected the applicant by passing the impugned order.
8. Learned counsel for Union of India is right in his submissions that in view of law laid down in the case of Sanjay Dutt Vs. State through CBI Bombay (supra)as well as of State of M.P. Vs. Rustam, 1995 (Supp.) 3) SCC 221 (supra) that 'the right to compulsive bail under Section 167(2) of Cr.P.C. does not survive after filing of the challan. The Court must examine the availability of the right to compulsive bail on the date it considered the question of bail and not merely on the date of presentation of the petition for bail' appears to be correct.
9. The constitution Bench of the Apex Court comprising of five Judges in the case of Sanjay Dutt's (supra) in paragraph no.48 of the said judgment has observed that :-
" We have no doubt that the common stance before us of the nature of indefeasible right of the accused to be released on bail by virtue of Section 20(4) (bb) is based on a correct reading of the principle indicated in that decision. The indefeasible right accruing to the accused in such a situation is enforceable only prior to the filing of the challan and it does not survive or remain enforceable on the challan being filed, if already not availed of. Once the challan has been filed, the question of grant of bail has to be considered and decided only with reference to the merits of the case under the provisions relating to grant of bail to an accused after the filing of the challan. The custody of the accused after the challan has been filed is not governed by Section 167 but different provisions of the Code of Criminal Procedure. If that right had accrued to the accused but it remained unenforced till the filing of the challan, then there is no question of its enforcement thereafter since it is extinguished the moment challan is filled because Section 167 Cr. P.C. ceases to apply. The Division Bench also indicated that if there be such an application of the accused for release on bail and also a prayer for extension of time to complete the investigation according to the proviso in section 20(4) (bb), both of them should be considered together. It is obvious that no bail can be given of the even in such a case unless the prayer for extension of the period is rejected. In short, the grant of bail in such a situation is also subject to refusal of the prayer for extension of time, if such a prayer is made. If the accused applies for bail under this provisions on expiry of the period of 180 days or the extended period, as the case may be, then he has to be released on bail forthwith. The accused, so released on bail may be arrested and committed to custody according to the provisions of the Code of Criminal Procedure. 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 custody or detention is on the basis of a valid order."
10. Moreover, as it has been argued by learned counsel for Union of India that the case relied upon by the Apex Court in the case of Udai Mohan Lal Achyarya Vs. State of Maharashtra (supra) is the judgment of three Judges of Supreme Court and by majority of 2:1 and it was observed that Sanjay Dutt's case (supra) has to be understood in the manner that the Magistrate has to dispose of such application made by the accused forthwith if the accused has been in custody without filing of charge sheet within the prescribed time limit and that accused was prepared to furnish bail bonds. In case after filing of application by the accused, the charge sheet has been filed, still the right of the accused under Section 167(2) Cr.P.C. shall continue. The Supreme Court in Uday Mohanlal Acharya's case (supra) has not overruled the judgment of Constitutional Bench in Sanjay Dutt's case (supra), it is very clear that the right of being released on bail without merits is available only after statutory period as given under Section 167(2) Cr.P.C. for extending remand has expired till the charge sheet is filed by the prosecution. It is not the right of the accused which is defined in Section 167(2) Cr.P.C., it is the authority of the Magistrate to extend the remand which is defined under Section 167(2) Cr.P.C. The authority of Magistrate to extend the remand of such an accused is upto 60 days or 90 days, as the case may be, in absence of filing of the charge sheet, but once the charge sheet is filed, this authority again gets vested in the Magistrate and after filing of charge sheet the Magistrate can decide the application for bail only on merits.
11. The another Constitutional Bench decision in the case of Central Board of Dawoodi Bohra Vs. State of Maharashtra and Another on 17the December, 2004, reported in 2005 (2) SCC 673, the Apex Court has held that "Having carefully considered the submissions made by the learned Senior counsel for the parties and having examined the law laid down by the Constitution Bench in the above said decision, we would like to sump up the legal position in the following terms:- (1) The law laid down by the Apex Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or co-equal strength. (2). A Bench of lesser quorum cannot doubt the correctness of the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of co-euqal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.
12. From perusal of the said judgment of the Apex court, and the law laid down by the Constitution Bench in the case of Sanjay Dutt's case (supra), it is apparent that the applicant's right to release on bail under Section 167(2) Cr.P.C. does not survive as on the date of when the application under Section 167(2) Cr.P.C. was being heard by the Court, the statutory complaint under the PMLA Act had already been filed on 2.5.2017.
13. Before parting with the case, we failed to understand the conduct of the Enforcement Directorate, opp. party no.1, that how it is possible that when an application was filed by the applicant under Section 167(2) Cr.P.C. on 1.5.2017 in default of the challan, the Enforcement Directorate did not file the complaint on 1.5.2017 against the applicant under Section ¾ of PMLA and when the said application was fixed by the In-charge Special Judge, PMLA/CBI,Court No.2, Lucknow on 2.5.2017 and when the same was placed on 2.5.2017, the Court of Special Judge, PMLA called a report from the Sessions Court by the In-charge Special Judge, PMLA/C.B.I.Court (Ayodhya Matters) on the said application of the applicant, it transpired that a complaint has been filed against the applicant under Section ¾ of PMLA, 2002 which reflects the otherwise conduct on the part of the concerned authorities in such a serious matter.
14. Thus, the In-charge Special Judge, PMLA, Lucknow has rightly rejected the application of the applicant under Section 167(2) Cr.P.C. by the impugned order dated 2.5.2017. Hence, no interference is called for by this Court in exercise of its inherent power under Section 482 Cr.P.C. to quash the impugned order.
15. The present 482 Cr.P.C. application lacks merit. It is accordingly, dismissed.
(Mrs. Rekha Dikshit,J.) (Ramesh Sinha, J.)
Order Date :- 3.7.2017/NS