Karnataka High Court
Mude Ravikanth vs State Of Karnataka on 4 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 29510 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 29510 OF 2024 (GM-RES)
BETWEEN:
1. MUDE RAVIKANTH
AGED ABOUT 32 YEARS
S/O MUDE VASU
R/AT NO. 23-7-51
GIRI STREET, SATYANARAYANA PURAM
VIJAYAWAWADA (URBAN), KRISHNA
ANDHRAPRADESH - 520 011.
2. BINDU C. M.,
AGED ABOUT 35 YEARS
C/O LATE R.MALLESHWARAPPA
R/AT NO. 440, GROUND FLOOR
2ND STAGE, 4TH BLOCK, 1ST 'D' CROSS
10TH MAIN, SHAKTHIGANAPATHI NAGAR
Digitally signed
by NAGAVENI BASAVESHWARANAGARA
Location: HIGH BENGALURU - 560 079.
COURT OF
KARNATAKA ...PETITIONERS
(BY SRI MAYUR D.BHANU, ADVOCATE)
AND:
STATE OF KARNATAKA
REPRESENTED BY SHO
HEBBAGODI POLICE STATION
INVESTIGATED BY CCB
REPRESENTED BY SPP
HIGH COURT BUILDING
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WP No. 29510 of 2024
BENGALURU - 560 010.
...RESPONDENT
(BY SRI B.N.JAGADEESHA, ADDL.SPP)
THIS WP IS FILED UNDER ARTICLES 226 OF
CONSTITUTION OF INDIA READ WITH SECTION 528 OF
BHARATIYA NAGARIKA SURAKSHA SANHITA (482 OF CR.P.C)
PRAYING TO QUASH THE WARRANT DTD 01.10.2024
ANNEXURE-C ISSUED BY THE VIII ADDL. DISTRICT AND
SESSIONS JUDGE, BENGALURU RURAL, AT BENGALURU IN
SPL. C. NO. 741/2024.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners – accused Nos.23 and 69 are before this
Court calling in question issuance of non-bailable warrant dated
01.10.2024, by the VIII Additional District and Sessions Judge,
Bengaluru Rural, Bengaluru, in Spl.C.No.741/2024.
2. Heard Sri Mayur D. Bhanu, learned counsel for
petitioners and Sri B.N.Jagadeesha, learned Additional State
Public Prosecutor for the respondent – State.
3. Facts in brief, germane, are as follows:
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WP No. 29510 of 2024A crime comes to be registered against unknown persons
in cr4ime No.242/2024, said to be on an information of one
Police Inspector of the City Crime Branch, for the offences
under Sections 8(c), 22(a), 22(b), 22(c), 25, 27 and 27(b) of
the Narcotics Drugs and Psychotropic substances Act and
Sections 290 and 294 of the IPC. The police after completion of
the investigation, file their final report on 30.09.2024. The
concerned Court takes cognizance of the afore-quoted offences
and issues process to secure the presence of the accused by
issuance of the non-bailable warrant on 01.10.2024. The
petitioners being aggrieved by the issuance of the non-bailable
warrant at the outset, is knocking at the doors of this Court in
the subject petition.
4. Learned counsel for petitioners submits that the
issuance of non-bailable warrant against the petitioners is
contrary to law and he would also rely on the judgment of the
Apex Court in the case of TARSEM LAL Vs. DIRECTORATE OF
ENFORCEMENT reported in 2024 SCC OnLine SC 1021.
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5. Per contra, learned Additional State Public Prosecutor
though would seek to refute the submission and defend the
action, admits the position of law that, to secure the presence
of an accused, non-bailable warrant cannot be issued.
6. The only issue that now falls for consideration is,
whether while issuing process, a non-bailable warrant can be
issued against the accused for securing their presence.
7. The impugned order of the concerned Court reads as
follows:
“Proceedings History
Sr.No. Date Proceedings
1. 30.09.2024
2. 01.10.2024 CALL ON 01.10.2024 A1 to A5, A9
And A10 –
Present
A.No.11 is
Absent ……
Issue process
to accused
A.No.12 is not
produced to
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WP No. 29510 of 2024judicial custody
…. …. ….
For order on
release of mobiles
by 07/10
O / Process and
issue N.B.W.
to rest of the
Accused as the
charge sheet.
Call on 27.11.”
(sic)
Against the petitioners, non-bailable warrant is issued as is
issued against several of the accused who were not present.
Whether a non-bailable warrant could be issued or not for
securing the presence of the accused, need not detain this
Court for long or delve deep into the matter. The Apex Court in
the case of TARSEM LAL V. ENFORCEMENT DIRECTORATE
reported in (2024) 7 SCC 61, considers the very issue and
holds as follows:
“….. …. ….
7. If the Special Court concludes that a prima facie
case of commission of an offence under PMLA is made out
in the complaint, it can order the issue of process in
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accordance with Section 204(1)CrPC. Section 204CrPC
reads thus:
“204. Issue of process.–(1) If in the opinion of a
Magistrate taking cognizance of an offence there is sufficient
ground for proceeding, and the case appears to be–
(a) a summons case, he shall issue his summons for the
attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks
fit, a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the
accused under sub-section (1) until a list of the prosecution
witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in
writing, every summons or warrant issued under sub-section
(1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-
fees or other fees are payable, no process shall be issued
until the fees are paid and, if such fees are not paid within a
reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of Section 87.”
(emphasis supplied)
8. As the punishment for an offence punishable
under Section 4 PMLA is of imprisonment for more than
three years, in view of clause (x) of Section 2CrPC, the
complaint will be treated as a warrant case. Under Section
204(1)(b), the court can issue either a warrant or
summons in a warrant case. Therefore, while taking
cognizance, the Special Court has the discretion to issue
either a summons or warrant.
9. Regarding the discretion under Section
204(1)(b), this Court has laid down the law in Inder
Mohan Goswami v. State of Uttaranchal [Inder Mohan
Goswami v. State of Uttaranchal, (2007) 12 SCC 1 :
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WP No. 29510 of 2024(2008) 1 SCC (Cri) 259 : (2007) 10 SCR 847] . This
Court held that as a general rule, unless an accused
is charged with an offence of heinous crime and it is
feared that he is likely to tamper with or destroy
the evidence or evade the process of law, the issue
of summons is the rule. This Court held that in a
complaint case, at the first instance, the court
should direct serving of summons along with the
copy of complaint. If service is avoided by the
accused, initially, a bailable warrant should be
issued. If that is not effective, a non-bailable
warrant should be issued. Paras 55 and 56 of the
said decision read thus : (SCC p. 18)“55. In complaint cases, at the first instance, the court should
direct serving of the summons along with the copy of the
complaint. If the accused seem to be avoiding the
summons, the court, in the second instance should issue
bailable warrant. In the third instance, when the court is
fully satisfied that the accused is avoiding the court’s
proceeding intentionally, the process of issuance of the
non-bailable warrant should be resorted to. Personal
liberty is paramount, therefore, we caution courts at the
first and second instance to refrain from issuing non-
bailable warrants.
56. The power being discretionary must be exercised
judiciously with extreme care and caution. The court
should properly balance both personal liberty and
societal interest before issuing warrants. There cannot
be any straitjacket formula for issuance of warrants but
as a general rule, unless an accused is charged with the
commission of an offence of a heinous crime and it is
feared that he is likely to tamper or destroy the evidence
or is likely to evade the process of law, issuance of non-
bailable warrants should be avoided.”
(emphasis supplied)
As noted earlier, a complaint under Section 44(1)(b)
PMLA will be governed by Sections 200 to 204CrPC.
Hence, the law laid down by this Court in the above
decision will apply to a complaint under Section 44(1)(b).
10. While taking cognizance on a complaint under
Section 44(1)(b), if the court finds that till the filing of the
complaint, the accused was not arrested, generally at the
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first instance, as a rule, the court must issue a summons
on the complaint. If the accused was not arrested till the
filing of the complaint but has not cooperated with the
investigation by defying summons issued under Section
50 PMLA, the Special Court may issue a bailable warrant
at the first instance while issuing the process. But even in
such a case, it is not mandatory to issue a warrant while
issuing process; instead issuance of a summons would
suffice. When an accused is on bail, while issuing the
process, the Special Court will have to issue only a
summons. When the accused is granted bail in the same
case, it is not necessary to arrest him after taking
cognizance. If such an accused does not remain present
after service of summons without seeking an exemption,
the Special Court can always issue a warrant to secure his
presence.
11. Section 61CrPC provides for the form of
summons. Form 1 in the Second Schedule is the
prescribed form of summons under Section 61CrPC. For
the sake of convenience, we are reproducing Form 1:
“FORM 1
[See Section 61]
Summons to an accused person
To (name of accused) of (address).
Whereas your attendance is necessary to answer to a charge of
(state shortly the offence charged), you are hereby required to
appear in person (or by pleader, as the case may be) before the
(Magistrate) of __________, on the _____day of
_______Herein fail not.
Dated, this ____________ day of ____________, 20
____________(Seal of the Court)
(Signature)”
________________
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Looking at the form of the summons, it is apparent that it
is issued only to secure the presence of the accused
before the court to answer the charge. If the accused
appears before the court, there is sufficient compliance
with the summons. Hence, the question of taking him into
custody on his appearance before the court pursuant to
the summons does not arise at all.
12. We fail to understand the basis of the
submission of the learned ASG that after an accused
appears before a Special Court in compliance with the
summons, he shall be deemed to be in custody. The
object of issuing a summons is to secure the accused’s
presence before the court. It is not issued for taking an
accused in custody. An argument is made that once an
accused appears before the Special Court, as provided
under sub-section (1) of Section 437, he has to apply for
bail.
13. For ready reference, we are reproducing sub-
section (1) of Section 437, which reads thus:
“437. When bail may be taken in case of non-
bailable offence.–(1) When any person accused of, or
suspected of, the commission of any non-bailable offence
is arrested or detained without warrant by an officer-in-
charge of a police station or appears or is brought before
a Court other than the High Court or Court of Session, he
may be released on bail, but–
(i) such person shall not be so released if there appear
reasonable grounds for believing that he has been guilty
of an offence punishable with death or imprisonment for
life;
(ii) such person shall not be so released if such offence is
a cognizable offence and he had been previously
convicted of an offence punishable with death,
imprisonment for life or imprisonment for seven years or
more, or he had been previously convicted on two or
more occasions of a cognizable offence punishable with
imprisonment for three years or more but not less than
seven years:
Provided that the Court may direct that a person referred
to in clause (i) or clause (ii) be released on bail if such
person is under the age of sixteen years or is a woman
or is sick or infirm:
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WP No. 29510 of 2024Provided further that the Court may also direct that a
person referred to in clause (ii) be released on bail if it is
satisfied that it is just and proper so to do for any other
special reason:
Provided also that the mere fact that an accused person
may be required for being identified by witnesses during
investigation shall not be sufficient ground for refusing to
grant bail if he is otherwise entitled to be released on
bail and gives an undertaking that he shall comply with
such directions as may be given by the Court:
Provided also that no person shall, if the offence alleged
to have been committed by him is punishable with
death, imprisonment for life, or imprisonment for seven
years or more, be released on bail by the Court under
this sub-section without giving an opportunity of hearing
to the Public Prosecutor.”
(emphasis supplied)
On its plain reading, sub-section (1) of Section 437 does
not apply when an accused appears or is brought before a
High Court or Sessions Court.
14. A Special Court is appointed under sub-section
(1) of Section 43 PMLA, which reads thus:
“43. Special Courts.–(1) The Central Government, in
consultation with the Chief Justice of the High Court,
shall, for trial of offence punishable under Section 4, by
notification, designate, one or more Courts of Session as
Special Court or Special Courts for such area or areas or
for such case or class or group of cases as may be
specified in the notification.
Explanation.–In this sub-section, “High Court” means
the High Court of the State in which a Sessions Court
designated as Special Court was functioning immediately
before such designation.”
Section 44(1)(d) provides that while trying a Scheduled
Offence or offence under PMLA, a Special Court shall
hold the trial in accordance with the provisions of CrPC
as they apply to trial before a Court of Session. A Special
Court is a Court of Session. Therefore, Section 437 will
not apply when an accused appears before the Special
Court after a summons is issued on a complaint under
Section 44(1)(b) PMLA.
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15. There are provisions in CrPC which show that
an accused who appears before the court under a
summons issued on a complaint cannot be treated as if he
is in a deemed custody. One such provision is Section
205CrPC, which reads thus:
“205. Magistrate may dispense with personal
attendance of accused.–(1) Whenever a Magistrate
issues a summons, he may, if he sees reason so to do,
dispense with the personal attendance of the accused and
permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case
may, in his discretion, at any stage of the proceedings,
direct the personal attendance of the accused, and, if
necessary, enforce such attendance in the manner
hereinbefore provided.”
(emphasis supplied)
16. We will examine whether Section 205CrPC will
apply to a complaint under Section 44(1)(b) PMLA.
Sections 65 and 71 PMLA read thus:
“65. Code of Criminal Procedure, 1973 to apply.–
The provisions of the Code of Criminal Procedure, 1973 (2
of 1974) shall apply, insofar as they are not inconsistent
with the provisions of this Act, to arrest, search and
seizure, attachment, confiscation, investigation,
prosecution and all other proceedings under this Act.
***
71. Act to have overriding effect.–The provisions of
this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force.”
17. After carefully perusing the provisions of PMLA,
we find that there is no provision therein which is in any
manner inconsistent with Section 205CrPC. Hence, it will
apply to a complaint under PMLA. A summons is issued on
a complaint to ensure attendance of the accused before
the criminal court. If an accused is in custody, no
occasion arises for a court to dispense with the personal
attendance of the accused. We may note here that
Section 205 empowers the court to grant exemption only
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when a summons is issued. Sub-section (2) of Section
205 provides for enforcing the attendance of the accused
before the court at the time of the trial. If the accused
who appears pursuant to the summons issued on a
complaint were deemed to be in custody, the lawmakers
would not have provided for Section 205. Hence, we
reject the argument of the learned ASG that once an
accused appears before the Special Court on a summons
being served to him, he shall be deemed to be in custody.
18. Now, we come to Section 88CrPC. Section 88
reads thus:
“88. Power to take bond for appearance.–When any
person for whose appearance or arrest the officer
presiding in any court is empowered to issue a summons
or warrant, is present in such court, such officer may
require such person to execute a bond, with or without
sureties, for his appearance in such court, or any other
court to which the case may be transferred for trial.”
If a summons on a complaint is issued and the accused
appears on the returnable date, it is not necessary in
every case to direct the accused to furnish bonds as
required by Section 88. It is an enabling provision that
permits the court to direct the accused to furnish bonds
considering the facts of each case.
19. Based on the submissions made across the Bar,
there are three issues concerning Section 88, which are
as under:
19.1. (i) Whether Section 88 applies to an accused
who has been served with a summons or applies to an
accused who appears before the court before the
summons is issued or served?
19.2. (ii) Will Section 88 apply to a complaint
under PMLA?
19.3. (iii) Whether an order issued by a criminal
court to the accused to furnish bonds in accordance with
Section 88 amounts to a grant of bail?
20. Firstly, after examining the provisions of PMLA,
it is apparent that Section 88 is in no manner inconsistent
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with the provisions of PMLA. Therefore, Section 88 will
apply after filing of a complaint under Section 44(1)(b)
PMLA. If Section 88 is to apply even before a summons is
issued or served upon a complaint, there is no reason
why it should not apply after the service of summons. A
discretionary power has been conferred by Section 88 on
the court to call upon the accused to furnish bonds for his
appearance before the court. It does not depend on the
willingness of the accused. The object of Section 88 is to
ensure that the accused regularly appears before the
court. Section 88 is a part of Chapter VI CrPC under the
heading “Processes to Compel Appearance”. Section 61,
which deals with the form of summons and mode of
service of summons, is a part of the same Chapter. When
a summons is issued after taking cognizance of a
complaint to an accused, he is obliged to appear before
the criminal court on the date fixed in the case unless his
presence is exempted by an express order passed in the
exercise of powers under Section 205CrPC. Therefore,
when an accused appears pursuant to a summons issued
on the complaint, the court will be well within its powers
to take bonds under Section 88 from the accused to
ensure his appearance before the court. Therefore, when
an accused appears before the Special Court under a
summons issued on the complaint, if he offers to submit
bonds in terms of Section 88, there is no reason for the
Special Court to refuse or decline to accept the bonds.
Executing a bond will aid the Special Court in procuring
the accused’s presence during the trial.
21. A decision of this Court in Pankaj Jain v. Union
of India [Pankaj Jain v. Union of India, (2018) 5 SCC 743
: (2018) 2 SCC (Cri) 867 : (2018) 9 SCR 248] had an
occasion to deal with the issue. The occasion to consider
the provision of Section 88 was the word “may” used in
the Section. We may conveniently reproduce paras 21
and 22 of the said decision, which reads thus : (SCC pp.
754-55)
“21. This Court in State of Kerala v. Kandath Distilleries
[State of Kerala v. Kandath Distilleries, (2013) 6 SCC 573]
came to consider the use of expression “may” in the Kerala
Abkari Act, 1902. The Court held that the expression
conferred discretionary power on the Commissioner and
power is not coupled with duty. Following observation has
been made in para 29 : (SCC p. 584)
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’29. Section 14 uses the expression “Commissioner
may”, “with the approval of the Government” so also
Rule 4 uses the expressions “Commissioner may”, “if
he is satisfied” after making such enquiries as he may
consider necessary “licence may be issued”. All those
expressions used in Section 14 and Rule 4 confer
discretionary powers on the Commissioner as well as
the State Government, not a discretionary power
coupled with duty.’
22. Section 88CrPC does not confer any right on any person,
who is present in a court. Discretionary power given to the
court is for the purpose and object of ensuring appearance of
such person in that court or to any other court into which the
case may be transferred for trial. Discretion given under Section
88 to the court does not confer any right on a person, who is
present in the court rather it is the power given to the court to
facilitate his appearance, which clearly indicates that use of the
word “may” is discretionary and it is for the court to exercise its
discretion when situation so demands. It is further relevant to
note that the words used in Section 88 “any person” have to be
given wide meaning, which may include persons, who are not
even accused in a case and appeared as witnesses.”
(emphasis in original and supplied)
22. This Court, in Pankaj Jain case [Pankaj Jain v.
Union of India, (2018) 5 SCC 743 : (2018) 2 SCC (Cri)
867 : (2018) 9 SCR 248] , dealt with a case where
Section 437CrPC was applicable. We have already held
that in case of a complaint under Section 44(1)(b) PMLA,
Section 437 will have no application. Thereafter, this
Court discussed the issue as to in what manner discretion
should be exercised. Paras 27 to 29 deal with this issue
which read thus : (Pankaj Jain case [Pankaj Jain v. Union
of India, (2018) 5 SCC 743 : (2018) 2 SCC (Cri) 867 :
(2018) 9 SCR 248] , SCC pp. 757-58)
“27. Another judgment relied upon by the appellant is the
judgment of the Punjab & Haryana High Court in Arun
Sharma v. Union of India [Arun Sharma v. Union of India,
2016 SCC OnLine P&H 5954] . In the above case, the Punjab
& Haryana High Court was considering Section 88CrPC read
with Section 65 of the Prevention of Money-Laundering Act.
In the above context, following has been observed in para 11
: (SCC OnLine P&H)
’11. On the same principles, in absence of anything
inconsistent in PMLA with Section 88CrPC, when a person
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voluntarily appears before the Special Court for PMLA
pursuant to issuance of process vide summons or warrant,
and offers submission of bonds for further appearances before
the court, any consideration of his application for furnishing
such bond, would be necessarily governed by Section 88CrPC
read with Section 65 PMLA. Section 88CrPC reads as follows:
“88. Power to take bond for appearance.–When
any person for whose appearance or arrest the officer
presiding in any court is empowered to issue a
summons or warrant, is present in such court, such
officer may require such person to execute a bond,
with or without sureties, for his appearance in such
court, or any other court to which the case may be
transferred for trial.”
This Section 88 (corresponding to Section 91CrPC, 1898)
would not apply qua a person whose appearance is not on
his volition, but is brought in custody by the authorities as
held by the Constitution Bench of the Hon’ble Supreme
Court in Madhu Limaye v. Ved Murti [Madhu Limaye v.
Ved Murti, (1970) 3 SCC 739] , wherein it was observed
that : (SCC p. 745, para 17)
“17. … In fact Section 91 applies to a person who is present
in court and is free because it speaks of his being bound
over, to appear on another day before the court. That
shows that the person must be a free agent whether to
appear or not. If the person is already under arrest and in
custody, as were the petitioners, their appearance
depended not on their own volition but on the volition of the
person who had their custody.”
Thus, in a situation like this where the accused were not
arrested under Section 19 PMLA during investigations and
were not produced in custody for taking cognizance, Section
88CrPC shall apply upon appearance of the accused person
on his own volition before the trial court to furnish bonds for
further appearances.’
28. The present is not a case where accused was a free
agent whether to appear or not. He was already issued non-
bailable warrant of arrest as well as proceeding of Sections
82 and 83CrPC had been initiated. In this view of the
matter, he was not entitled to the benefit of Section 88.
29. In the Punjab & Haryana case, the High Court has relied
on judgment of this Court in Madhu Limaye v. Ved Murti
[Madhu Limaye v. Ved Murti, (1970) 3 SCC 739] and held
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that Section 88 shall be applicable since accused were not
arrested under Section 19 PMLA during investigation and
were not taken into custody for taking cognizance. What the
Punjab & Haryana High Court missed, is that this Court in
the same paragraph had observed “that shows that the
person must be a free agent whether to appear or not”.
When the accused was issued warrant of arrest to appear in
the court and proceeding under Sections 82 and 83CrPC has
been initiated, he cannot be held to be a free agent to
appear or not to appear in the court. We thus are of the
view that the Punjab & Haryana High Court has not
correctly applied Section 88 in the aforesaid case.”
(emphasis in original and supplied)
23. Therefore, if a warrant of arrest has been
issued and proceedings under Section 82 and/or 83CrPC
have been issued against an accused, he cannot be let off
by taking a bond under Section 88. Section 88 is indeed
discretionary. But this proposition will not apply to a case
where an accused in a case under PMLA is not arrested by
ED till the filing of the complaint. The reason is that, in
such cases, as a rule, a summons must be issued while
taking cognizance of a complaint. In such a case, the
Special Court may direct the accused to furnish bonds in
accordance with Section 88CrPC.
24. Now, we come to the issue of whether an order
of the court accepting bonds under Section 88 amounts to
grant of bail. If an accused appears pursuant to a
summons issued on the complaint, he is not in custody.
Therefore, there is no question of granting him bail.
Moreover, even if the accused who appears before the
court does not offer to submit bonds under Section
88CrPC, the court can always direct him to do so. A bond
furnished according to Section 88 is an undertaking to
appear before the court on the date fixed. The question of
filing bail bonds arises only when the court grants bail.
When an accused furnishes a bond in accordance with
Section 88CrPC for appearance before a criminal court, he
agrees and undertakes to appear before the criminal court
regularly and punctually and on his default, he agrees to
pay the amount mentioned in the bond. Section 441CrPC
deals with a bond to be furnished by an accused when
released on bail. Therefore, in our considered view, an
order accepting bonds under Section 88 from the accused
does not amount to a grant of bail.
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25. Now, we deal with a contingency where after
service of summons issued on a complaint under PMLA,
the accused does not appear. One category of such cases
can be where the accused appears on the returnable date
of the summons and subsequently does not appear,
notwithstanding the furnishing of bonds under Section 88.
The other category of cases is where, after the service of
summons is made on the complaint, the accused does not
appear. This category will also include a case where the
accused appears on returnable date, but on a subsequent
date fails to appear. In the first contingency, where the
accused does not appear in breach of the bond furnished
under Section 88, Section 89CrPC confers sufficient
powers on the court to take care of the situation. Section
89 reads thus:
“89. Arrest on breach of bond for appearance.–
When any person who is bound by any bond taken under
this Code to appear before a court, does not appear, the
officer presiding in such court may issue a warrant
directing that such person be arrested and produced
before him.”
The warrant contemplated by Section 89 can be a bailable
or non-bailable warrant.
26. Even if a bond is not furnished under Section
88 by an accused and if the accused remains absent after
that, the court can always issue a warrant under Section
70(1)CrPC for procuring the presence of the accused
before the court. In both contingencies, when the court
issues a warrant, it is only for securing the accused’s
presence before the court. When a warrant is issued in
such a contingency, it is not necessary for the accused to
apply for bail. Section 70, which confers power on the
court to issue a warrant, indicates that the court which
issues the warrant has the power to cancel it. Section 70
reads thus:
“70. Form of warrant of arrest and duration.–(1)
Every warrant of arrest issued by a court under this Code
shall be in writing, signed by the presiding officer of such
court and shall bear the seal of the court.
(2) Every such warrant shall remain in force until it is
cancelled by the court which issued it, or until it is
executed.”
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WP No. 29510 of 2024
(emphasis supplied)
Thus, sub-section (2) of Section 70 confers power on the
court to cancel the warrant. When a bailable warrant is
issued to an accused on the grounds of his non-
appearance, he is entitled to be enlarged on bail as a
matter of right when he appears before the court.
Therefore, he need not apply for cancellation of the
warrant.
27. When a warrant is issued in the cases
mentioned in para 25 above, the Special Court can always
entertain an application for cancellation of the warrant
and can cancel the warrant depending upon the conduct
of the accused. While cancelling the warrant, the court
can always take an undertaking from the accused to
appear before the court on every date unless appearance
is specifically exempted. When ED has not taken the
custody of the accused during the investigation, usually,
the Special Court will exercise the power of cancellation of
the warrant without insisting on taking the accused in
custody provided an undertaking is furnished by the
accused to appear regularly before the court. When the
Special Court deals with an application for cancellation of
a warrant, the Special Court is not dealing with an
application for bail. Hence, Section 45(1) will have no
application to such an application.
28. At this stage, we may refer to a decision of this
Court in Satender Kumar Antil [Satender Kumar Antil v.
CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1 : (2022)
10 SCR 351] . While dealing with Sections 88, 170, 204
and 209CrPC, in para 100.5, this Court held thus : (SCC
p. 136)
“100.5. There need not be any insistence of a bail
application while considering the application under
Sections 88, 170, 204 and 209 of the Code.”
29. At this stage, we may note here that from
paras 86 to 89 of the same decision, this Court dealt with
category of special Acts. In para 89, this Court held thus :
(Satender Kumar Antil case [Satender Kumar Antil v. CBI,
(2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1 : (2022) 10 SCR
351] , SCC p. 131)
– 19 –
NC: 2024:KHC:44202
WP No. 29510 of 2024
“89. We may clarify on one aspect which is on the
interpretation of Section 170 of the Code. Our discussion
made for the other offences would apply to these cases
also. To clarify this position, we may hold that if an
accused is already under incarceration, then the same
would continue, and therefore, it is needless to say that
the provision of the Special Act would get applied
thereafter. It is only in a case where the accused is either
not arrested consciously by the prosecution or arrested
and enlarged on bail, there is no need for further arrest at
the instance of the court. Similarly, we would also add
that the existence of a pari materia or a similar provision
like Section 167(2) of the Code available under the
Special Act would have the same effect entitling the
accused for a default bail. Even here the court will have to
consider the satisfaction under Section 440 of the Code.”
(emphasis supplied)
30. Once cognizance is taken of the offence
punishable under Section 4 PMLA, the Special Court is
seised of the matter. After the cognizance is taken, ED
and other authorities named in Section 19 cannot exercise
the power of arrest of the accused shown in the
complaint. The reason is that the accused shown in the
complaint are under the jurisdiction of the Special Court
dealing with the complaint. Therefore, after cognizance of
the complaint under Section 44(1)(b) PMLA is taken by
the court, ED and other authorities named in Section 19
are powerless to arrest an accused named in the
complaint. Hence, in such a case, an apprehension that
ED will arrest such an accused by exercising powers under
Section 19 can never exist.
31. We are informed across the Bar by the learned
counsel of the appellants that some of the Special Courts
under PMLA are following the practice of taking the
accused into custody after they appear pursuant to the
summons issued on the complaint. Therefore, the accused
are compelled to apply for bail or for anticipatory bail
apprehending arrest upon issuance of summons. We
cannot countenance a situation where, before the filing of
the complaint, the accused is not arrested; after the filing
of the complaint, after he appears in compliance with the
summons, he is taken into custody and forced to apply for
bail. Hence, such a practice, if followed by some Special
Courts, is completely illegal. Such a practice may offend
– 20 –
NC: 2024:KHC:44202
WP No. 29510 of 2024
the right to liberty guaranteed by Article 21 of the
Constitution of India. If ED wants custody of the accused
who appears after service of summons for conducting
further investigation in the same offence, ED will have to
seek custody of the accused by applying to the Special
Court. After hearing the accused, the Special Court must
pass an order on the application by recording brief
reasons. While hearing such an application, the court may
permit custody only if it is satisfied that custodial
interrogation at that stage is required, even though the
accused was never arrested under Section 19. However,
when ED wants to conduct a further investigation
concerning the same offence, it may arrest a person not
shown as an accused in the complaint already filed under
Section 44(1)(b), provided the requirements of Section 19
are fulfilled.”
In the light of the fact that the issue in the lis being completely
answered by the Apex Court, the order that directs issuance of
non-bailable warrant to secure the presence of the petitioners
becomes unsustainable.
8. For the aforesaid reasons, the following:
ORDER
a. The writ petition is allowed.
b. The order dated 01.10.2024, issuing non-bailable
warrant against the petitioners by the VIII Additional
– 21 –
NC: 2024:KHC:44202
WP No. 29510 of 2024District and Sessions Judge, Bengaluru Rural,
Bengaluru, stands quashed.
c. The concerned Court is directed to regulate its
procedure bearing in mind the observations made in
the course of the order.
Ordered accordingly.
Sd/-
(M.NAGAPRASANNA)
JUDGENVJ
List No.: 5 Sl No.: 2
CT:SS