The Summon That Never Was: A Tale of Legal Error and Judicial Correction
Souvik Bhattacharya v. Enforcement Directorate Kolkata Zone Office -II
Before Supreme Court of India
The present Criminal Appeal was heard by the Bench of HonтАЩble Madam Justice Bela M Trivedi J & HonтАЩble Mr Justice Pankaj Mithal J
The criminal appeal was allowed on 16.02.2024 with the direction of release of the appellant petitioner on bail on the terms and conditions as may be imposed by the Special Court.
The Special (CBI) Court had not passed any order summoning the (alleged accused) present appellant Souvik Bhattacharya out of 14 accused persons.
Cognizance of the offences under the (PMLA)Prevention of Money Laundering Act, 2002 was taken on 07.12.2022. Summons was issued to the appellant without any order to this effect.
The appellant thereafter voluntarily surrendered before the CBI Court and applied for bail.
Bail moved u/s 437was rejected by the Special Court on 22.02.2023.
The rejection of bail application was challenged before High Court and High Court also rejected the bail on 18.10.2023.
Aggrieved by the rejection of Bail by the High Court Appellant, Criminal Appeal is filed before the Supreme Court.
Submission of the Counsel for the Petitioner
The Special CBI Court took cognizance of the offence on 07.12.2022. At the time of taking of cognizance CBI Court observed that since 3 accused are already in judicial custody, process will not be issued against them with regard to rest (11 accused) summons will be issued at later stage.
Summon was later issued and served upon the present appellant.
Respecting the summons the appellant voluntarily surrendered before the Special CBI Court and since then, he is in judicial custody.
In the absence of any order summoning the appellant, the appellant could not have been taken into custody, even if the cognizance of the offence was taken against him.
Submission of the Counsel for the Enforcement Directorate
The issue of taking the appellant in custody without any order of summons was not raised by the appellant before the High Court.
However, he admitted that there was no order passed by the Special CBI Court issuing summons or warrant against the appellant, and that appellant had voluntarily appeared and surrendered before the Special Court.
It was also submitted that even without issuance of summons or warrant from the Court, accused can appear and surrender before the Court and seek his release on bail under section 437 of Cr PC.
Since the accused had surrendered before the Special CBI Court and applied for bail, his bail application was considered under section 437 and was rejected by the CBI Court and the same order was confirmed by the High Court as well.
Observation of the Apex Court
The Counsel for the Enforcement Directorate didnтАЩt dispute the position that after the passing of the order on 07.12.2022 for further investigation by the CBI Court, there was no order passed by the Special CBI Court for issuance of the summons or warrant against the present appellant.
Still the summons was issued and served upon the appellant, pursuant to which he surrendered himself before the Court.
We fail to understand as to how summons under section 61Cr P C came to be issued on 22.12.2022 requiring the appellant to appear before the Special Court on 07.01.2023.
When the Special Court had specifically mentioned in the above order that in respect of the other eleven accused necessary order for issuance of summons will be issued at a later stage.
Since summons were served, the appellant appeared before the Special Court and applied for his release on bail.
Since there was no order passed by the Special Court for issuance of the summons or warrant, in our opinion, the application of the appellant seeking bail could not have been entertained.
The appellant-accused filed the bail application before the Special Court under the misconception of fact and misconception of law, which application came to be dismissed by the Special Court.
Though the issue was not specifically raised by the appellant before the High Court, the said question being the question of law, we have permitted the counsel for the appellant to be raised in the instant appeal
In view of the same the appellant accused is directed to be released on bail on the terms and conditions that may be imposed by the Special Court.
