The Supreme Court held that if an accused voluntarily surrenders before the court, they cannot be taken into custody, even if the court that took cognizance of the chargesheet did not issue a summoning order against them. Additionally, the court emphasized that a bail application from such an accused, who surrenders voluntarily without a summoning order, cannot be entertained.
This decision came during the consideration of a petition filed by Souvik Bhattacharya, the son of TMC MLA Manik Bhattacharya, who surrendered before the trial court in January 2023 and was subsequently remanded to custody in a money laundering case.
Brief Facts:
In this case, the Special (CBI) Court took cognizance of offences under the Prevention of Money Laundering Act, 2002 (PMLA) through an order dated 07.12.2022. Despite this, the court did not initially issue any summons to the present appellant, who was identified as accused No.10. However, at a later stage, the Special Court issued summons to the appellant in accordance with the prescribed Form under Section 61 of the Criminal Procedure Code (CrPC). Following the issuance of the summons, the appellant voluntarily surrendered before the Special Court. Subsequently, the appellant sought bail, which was subsequently denied by the Special Court in an order dated 22.02.2023.
Dissatisfied with this decision, the appellant took the matter to the High Court, filing CRM (SB) 164 of 2023. However, the High Court upheld the decision of the Special Court and dismissed the appellant's appeal through an order dated 18.10.2023. In response to the High Court's ruling, the appellant had appealed to the present court, seeking redress.
Contentions of the Appellant:
The Learned Counsel for the Appellant submitted that the Special Court initially observed that accused Nos. 1, 2, and 9 were already in judicial custody, indicating no need for further process issuance at that time. However, despite this observation, summons were inexplicably issued and served upon the appellant. The counsel emphasized that the appellant, in compliance with the court's summons, voluntarily surrendered and has since remained in judicial custody. Furthermore, they contended that without a specific order summoning the appellant, he should not have been taken into custody, even if the offence had been taken cognizance of against him. The counsel acknowledged that the appellant's surrender was a result of erroneous legal advice received.
Contentions of the Respondent:
The learned Counsel for the Respondent submitted that the appellant did not raise the issue of being taken into custody without a summons order before the High Court. They acknowledged that no specific summons or warrant was issued by the Special Court against the appellant, and highlighted that the appellant voluntarily appeared and surrendered before the Special Court. The counsel referred to Section 437 of the Criminal Procedure Code (CrPC), asserting that even without the issuance of a summons or warrant, an accused can appear and surrender before the court to seek bail. In this case, the counsel emphasized that since the appellant voluntarily surrendered before the court, his bail application was considered under Section 437 CrPC. The Special Court's decision to reject the bail application was subsequently affirmed by the High Court.
Observations of the Court:
The court observed that despite no specific order from the Special Court for the issuance of summons or warrant against the appellant, a summons under Section 61 was issued on 22.12.2022, requiring the appellant's appearance on 07.01.2023. The appellant appeared as summoned and applied for bail. However, due to the absence of a court order for the issuance of a summons or warrant, the court deemed the appellant's bail application procedurally flawed. The court noted that the appellant was not arrested during the investigation or when the prosecution complaint was filed before the Special Court, as acknowledged by the learned ASG.
The court pointed out that Section 437 of the Criminal Procedure Code (CrPC) applies when the accused is arrested, or detained, or when a summons or warrant is issued against them to appear before the court. Without an order for the issuance of summons or warrant under Section 204 or any other provision of the CrPC, the summons should not have been issued or served upon the appellant, nor should he have been arrested or taken into custody. The court further noted that the appellant filed the bail application under a misconception of fact and law, which was subsequently dismissed by the Special Court. Although this issue was not specifically raised before the High Court, the court allowed the appellant's counsel to raise it in the present appeal as it pertained to a question of law.
The decision of the Court:
The Supreme Court accepted the appeal and released the appellant on bail on the terms and conditions that may be imposed by the Special Court.
Case Title: Souvik Bhattacharya Vs. Enforcement Directorate Kolkata Zonal Office
Coram: Hon’ble Mrs. Justice Bela M. Trivedi and Hon’ble Mr. Justice Pankaj Mithal
Advocate for the Appellant: Mr. Sidharth Luthra and others
Advocate for the Respondents: Mr. S.V. Raju and others
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