Orissa High Court
Afr Sarat Kumar Sahoo vs Enforcement Directorate ..... Opp. ... on 18 March, 2024
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No. 1252 of 2024
An application under section 438 of Cr.P.C.
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AFR Sarat Kumar Sahoo ..... Petitioner
-Versus-
Enforcement Directorate ..... Opp. Parties
Advocate(s) appeared in this case :-
_________________________________________________________
For Petitioner : M/s. Devashis Panda, S. Panda,
A. Mehta & A. Achary,
Advocates
For Opp. Parties : Mr. Gopal Agarwal, Adv.
Advocate for E.D.
_________________________________________________________
CORAM :
JUSTICE SASHIKANTA MISHRA
JUDGMENT
th 18 March, 2024 SASHIKANTA MISHRA, J.
This is an application filed by the petitioner seeking anticipatory bail as per section 438 of Cr.P.C. in connection with Complaint Case (PMLA) No. 60 of 2018 pending in the Court of learned Addl. Sessions Judge (C.B.I.-I)-cum-Special Court under the PMLA Act, Bhubaneswar.
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2. It appears from the record that 23 FIRs were registered in various Police Stations under Bhubaneswar- Cuttack Commissionerate against several persons including the petitioner alleging commission of various crimes such as, abduction, murder, criminal conspiracy, crimination intimidation, extortion, tender fixing, possession of illegal arms and ammunitions, counterfeit currencies and forgery etc. The present petitioner has been charge sheeted under Sections 387/120-B/34 of IPC read with Section 25/27 of Arms Act in Chauliaganj P.S. Case No. 27 of 2016 and under Sections 25(1-B)/25(1-A)A of Arms Act in Badambadi P.S. Case No. 80 of 2016. Such offences being scheduled offences as per the provisions of the Prevention of Money Laundering Act, 2002, an ECIR being ECIR/02/BBSR/2016 dated 03.06.2016 was registered and upon completion of preliminary enquiry, a complaint being Complaint Case (PMLA) No.60 of 2018 has been filed in the Court of learned Addl. Sessions Judge (C.B.I.-I)-cum-Special Court under the PML Act, Bhubaneswar. The allegation as against the petitioner as culled out from the FIRs registered in connection with the Page 2 of 11 aforementioned two cases are that he had invested in several immovable properties in his name as well as his wife's name amounting to Rs.71 Lakhs at different places, even though his total income is Rs.16 Lakhs from a grocery shop. It was found during enquiry/investigation that he had generated huge proceeds of crime by extortion, tender fixing, possession and running illegal trade of arms and ammunitions etc. Further, he was fixing tender for balighats (sand quarries) on behalf of Dhalasamant brothers (co-accused persons). In course of investigation, the petitioner's statement was recorded under Section 50 of the PML Act. He fully cooperated in the investigation and as such, there was no move by the investigating agency to arrest him at any point of time. After filing of the complaint, the Court below issued summons for his appearance. The petitioner appeared through his lawyer and moved an application for dispensation of his personal attendance in the Court, which came to be rejected by order dated 17.07.2023. Thus, apprehending that he may be taken to custody on Page 3 of 11 his appearance, the petitioner has approached this Court in the present application.
3. Heard Mr. D. Panda, learned counsel for the petitioner and Mr. G. Agarwal, learned counsel appearing for the Enforcement Directorate.
4. Mr. Panda would argue that the complaint petition does not reveal any direct allegation or evidence of money laundering against the petitioner. The investigating agency has taken into account immovable assets standing in the name of the petitioner's wife but has not shown as to how they are related to the petitioner or can be classified as proceeds of crime. The other evidence purportedly collected by the investigating agency from banks, IGR, revenue authorities, Income Tax authorities, etc. do not reveal a prima facie case against the petitioner at all. The only evidence relied upon by the prosecution is the petitioner's own statement recorded during investigation. Further, the documents relied upon by the investigating agency are relatable to the co-accused persons, particularly to the Dhalasamant brothers but not to the petitioner. The witnesses cited by the Page 4 of 11 investigating agency in the complaint are not in any manner relatable to any act committed by the petitioner. Mr. Panda further argues that being fully conscious of the absence of a prima facie case against the petitioner, he was not arrested during investigation. However, on his appearance, the Court below may take him to custody by looking at the conditions laid down under Section 45 of the PML Act and therefore, the petitioner's apprehension is justified for which he needs to be protected by this Court.
5. Per contra, Mr. G. Agarwal would argue that the petitioner had appeared through his counsel thereby submitting to the jurisdiction of the Court though not physically and sought exemption of personal attendance in terms of Section 205 of Cr.P.C.. Only because such application was rejected by the Court below does not entitle him to be granted the benefit of pre-arrest bail. Mr. Agarwal further argues that under the scheme of the PML Act the statement of the accused recorded under Section 50 of the PML Act is admissible. Mr. Agarwal concludes his arguments by submitting that since the Court below Page 5 of 11 has issued summons, the petitioner should appear in obedience to such summons and move for regular bail, which would be considered on its own merit by the Court below.
6. Both the parties have relied upon several case laws, which would be discussed at the appropriate place.
7. There is no dispute that the petitioner's application for dispensation of personal attendance was rejected by the Court below. Such order of rejection does not appear to have been challenged by the petitioner in any higher forum. It has been argued that the very object of Section 438 of Cr.P.C. is to prevent an accused from being unduly harassed by pre-trial arrest and detention and that mere taking of cognizance or filing of charge sheet cannot bar exercise of such jurisdiction. The case of Bharat Chaudhary v. State of Bihar1, has been relied upon by Mr. Panda in this regard. The case of Tarsem Lal v. Enforcement Directorate2 has also been relied upon by Mr. Panda wherein an order was passed by the Supreme Court on 11.01.2024 granting protection to the 1 (2003) 8 SCC 77 2 2024 SCC OnLine SC 239 Page 6 of 11 petitioner therein from arrest subject to the condition of his remaining present before the trial Court on the dates fixed. In the said case, it is submitted, the Supreme Court is considering the question as to if pursuant to summons issued by the Special Court the accused is required to apply for bail in terms of Section 437 of Cr.P.C. and if so, whether such application would be governed by the twin conditions imposed by Section 45 of the PML Act.
8. The cases cited as above can be easily distinguished from the facts of the present case inasmuch as here the petitioner has already appeared pursuant to summons albeit through his lawyer and made a motion for exemption for his personal attendance, which was rejected. Thus, this case is entirely on a different footing than the case of Tarsem Lal (supra).
9. Mr. Agarwal on the other hand has relied upon several decisions of the Supreme Court as well as of this Court, all of which are not necessary to be considered for the reason that in an almost identical case, i.e. Rajat Choudhury vs. Union of India (Enforcement Page 7 of 11 Directorate)3, this Court has already considered all such decisions of the Supreme Court and held as follows;
"13. Thus, the question that arises for consideration is, whether in the facts and circumstances of the case narrated hereinbefore it would be correct to hold that the petitioner is faced with imminent arrest so as to invoke the provision under Section 438 of Cr.P.C.. As already stated, the supplementary complaint was lodged way back in the year 2018 not to speak of the prior investigation that commenced in the year 2016. No steps have been taken by the investigating agency to take the petitioner into custody or for custodial interrogation. Therefore, the apprehension of the petitioner of being arrested does not appear to be reasonable at all. The contention that he may be taken into custody upon his appearance before the court below cannot be equated with imminence of arrest as required for exercise of jurisdiction under Section 438 of Cr.P.C. In a way, the petitioner seeks to foreclose the power of the court below to determine on the facts and circumstances placed before it, the question whether it is necessary to take him into custody or not on his appearance. The power of police to arrest a person on its own accord is ordinarily limited to the period of investigation but once charge sheet is submitted, cognizance is taken and summons is issued, police can arrest only upon orders of the Court provided no further investigation is undertaken as per Section 173(8) of Cr.P.C. It would be profitable at this stage to refer to the provision under Section 167 of Cr.P.C., which also speaks about custody of the accused pending investigation, which can either be police custody (for a limited period) or judicial custody as directed by the Court. But once cognizance of the offence is taken, the custody of the accused would be governed by the provisions of Section 309 of Cr.P.C., the relevant part of sub- section (2) of which reads as follows:
"309. Power to postpone or adjourn proceedings.--
xx xx xx 3 ABLAPL No. 14928 of 2011 decided on 01.03.2023 Page 8 of 11 (2) If the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any inquiry or trial, it may, from time to time, for reasons to be recorded, postpone or adjourn the same on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused if in custody:
Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time:
xx xx xx"
Thus, there is a subtle but clear distinction in the custody of the accused during investigation and after taking of cognizance by the Court. So, if pursuant to summons issued by the Court, the accused appears before it, the apprehension of arrest by police no longer survives as he can be apprehended only on order (warrant) of the Court. The provision under Section 438 of Cr.P.C. is never intended to protect the accused from an order passed by the Court directing his custodial detention. In other words, the „custodial detention‟ that may be ordered by the Court upon appearance by the accused is not akin or synonymous with „his arrest‟ by the police. Any interpretation otherwise, would run contrary to the statutory procedure required to be followed for enquiry and trial of cases contained under Chapter-XVII of Cr.P.C. The petitioner, as already stated, filed application under Section 205 of Cr.P.C which being rejected he has approached this Court. Filing of the application under Section 205 Cr.P.C. implies, the petitioner voluntarily submitted himself to the jurisdiction of the Court, albeit not physically but through his lawyer and sought dispensation of his personal appearance. Two scenarios were possible
- either the application under Section 205 of Cr.P.C. would have been allowed or it would have been rejected. In the instant case, such application was rejected. Had it been allowed also, the applicant had to appear through his lawyer to receive police papers as per Section 207/208 of Cr.P.C. Now that it was rejected he still has to appear personally or through his lawyer for the same purpose as stated above. In either case, he has to seek regular bail from the court, for, the moment he appears or surrenders he will be deemed to be in custody of the court. The court may either grant him bail or remand him to further custody. In either case it Page 9 of 11 would not be arrest by police but detention of the petitioner in custody by order of the Court, which the petitioner wants to thwart at the threshold and which, according to the considered view of this Court, is not permissible in law.
14. Considering the scheme and procedure laid down in the Cr.P.C. such an action cannot be countenanced. In other words, the protection under Section 438 of Cr.P.C. is against arrest while the petitioner‟s prayer effectively is to seek protection from custodial detention, if any, that may be ordered by the Court on his appearance. There is a subtle but meaningful difference between the two situations as referred above."
10. As already stated, the facts of the present case are almost identical to the facts of Rajat Choudhury (supra), wherein this Court after extensively analyzing the relevant statutory provisions vis-à-vis the judgments cited at the bar, held that the provision under Section 438 of Cr.P.C. cannot be invoked to protect the accused from his apprehension of being taken to custody on his appearance by orders of the Court. Of course, it is always open to the petitioner to challenge the order of the Court in rejecting his application under Section 205 of Cr.P.C. before the appropriate forum but mere rejection of such application cannot confer on him the right to seek a blanket protection from an order that may be passed by Court below directing him to be taken into custody on his Page 10 of 11 appearance if at all. That apart, a summons only having been issued by the Court below, the apprehension of the petitioner that he would be definitely taken to custody appears rather far-fetched because had such been the intention the Court below could have issued a warrant instead of summons.
11. For the foregoing reasons therefore, this Court is of the considered view that the application for anticipatory bail is not maintainable and is therefore, rejected.
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Sashikanta Mishra, Judge Orissa High Court, Cuttack The 18th March, 2024/ A.K. Rana Signature Not Verified Digitally Signed Signed by: AJAYA KUMAR RANA Designation: Personal Assistant Reason: Authentication Page 11 of 11 Location: HIGH COURT OF ORISSA, CUTTACK Date: 18-Mar-2024 19:24:39