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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                                            NC: 2024:KHC:44202
                                         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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A 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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judicial custody

.... .... ....

For order on

release of mobiles

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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(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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Provided 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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(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)

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"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

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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: