Telangana High Court
Sanjay Raghunath Agarwal vs The Directorate Of Enforcement on 28 February, 2023
Bench: K.Surender
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.672 of 2023
ORDER:
1. This Criminal Petition is filed to quash/set aside the docket
order dated 18.01.2023 passed in Crl.M.P.(SR) No.548 of 2023 in
ECIR/HYZO/26 of 2022 on the file of Metropolitan Sessions Judge-
cum-Special Court under the Prevention of Money Laundering Act
(PMLA), 2002 at Nampally, Hyderabad.
2. The petitioner is aggrieved by the return of his petition vide
Crl.M.P.(SR) No.548 of 2023. The said petition was filed under
Section 167(2) of Cr.P.C on 17.01.2022 and the same was returned
with an endorsement "How this petition is maintainable before this
Court. In this case complaint/charge sheet filed on 25.11.2022 vide
Sr.No.11520 of 2022. Hence this petition is returned."
3. The said petition was resubmitted on 18.01.2023 stating
"Present petition for mandatory bail under Section 16(2) has been
filed even after filing of alleged charge sheet. Remand was extended
on 4 dates. Hence petition maintainable as per law laid down in
C.Parthasarathy v. Directorate of Enforcement."
4. Again when the petition was resubmitted, the office endorsed
as follows: "Resubmitted the SR No.510 of 2023. Filing citations
Hon'ble High Court TS. Hyderabad of Crl.P.No.3786, 4127 & 4137 of
2022 decided on 17.05.2022 for maintainability."
5. Thereafter the Learned Sessions Judge passed orders as
follows:
"The petition is filed under section 167(2) of CrPC, date of
remand was 27.9.2022 but the charge sheet filed on 25.11.2022,
thereafter once the Hon'ble High Court dismissed the bail application
in Crl.Petition No.9695/2022 on 7.12.2022 i.e., after statutory period
of 60 days this court cannot entertain the bail application. Hence, the
petition is returned."
6. Learned Senior Counsel appearing for the petitioner would
submit that the petitioner was arrested on 26.09.2022 and was in
judicial custody since 27.09.2022. The right to statutory bail under
Section 167(2) of Cr.P.C accrued on 26.11.2022. Though the
compliant was filed on 25.11.2022, the same was filed pending
further investigation, for which reason, the right of bail under
Section 167(2) of Cr.P.C cannot be taken away. He relied on the
judgment of this Court in the case of C.Parthasarathy v. Director
of Enforcement, Hyderabad1. In the said judgment, under similar
circumstances, though complaint was filed under Section 44(1)(b)
of Prevention of Money Laundering Act, 2002 within the 60 days
period, my Leaned brother did not accept the contention of the
2022(2)ALD(Crl.)404
respondent/ED that since complaint was filed, petition under
section 167(2) CRPC was not maintainable. It was held that
Charge sheet / Complaint can only be filed after completion of
investigation and when the Enforcement Directorate submitted that
investigation was being carried out, which is permissible under
Section 44(1)(d)(ii), it means that investigation was incomplete and
since the Court did not take cognizance of the complaint, it
indicates that investigation was incomplete. Therefore, the initial
complaint that was filed on 19.03.2022 in the said case was not
treated as complaint under Section 173(2) of Cr.P.C. It was further
held that a complaint/charge sheet filed without completing the
investigation cannot be used to circumvent the right of statutory
bail under Section 167(2) of Cr.P.C. In the said circumstances,
learned Senior Counsel argued that this Court may direct that the
bail petition vide Crl.M.P.(SR) No.548 of 2023, which was returned,
should be numbered and heard.
7. On the other hand, learned counsel appearing for the
Enforcement Directorate would submit that complaint was filed on
25.11.2022 and was numbered as SR No.11520 of 2022 on
25.11.2022. In the said circumstances, the claim of the petitioner
that a statutory right for bail has accrued on 26.11.2022 is
incorrect. Further, the bail application filed by this petitioner for
grant of bail was refused by this Court in Criminal Petition No.9695
of 2022 on 07.12.2022 and accordingly prayed to dismiss the
petition.
8. A perusal of the record reveals that the petitioner was
arrested on 26.09.2022 and remanded on 27.09.2022. The right
accrued for default bail was on 26.11.2022. Further, complaint was
filed on 25.11.2022. Thereafter, the petitioner had pursued his
remedy for bail before this Court and this Court dismissed the
petition for grant of bail on 07.12.2022. As seen from the order
dated 07.12.2022 in Criminal Petition No.9695 of 2022, no ground
was raised regarding accrual of statutory right of bail under Section
167(2) of Cr.P.C.
9. Learned counsel for the petitioner argued that this Court had
dismissed the said application on facts and since investigation was
in progress according to the counsel for the Enforcement
Directorate.
10. The learned Senior Counsel would submit that even according
to the counsel for the Enforcement Directorate, they have
specifically stated that the investigation is in progress. In the said
circumstances the right to bail accrued when investigation was
incomplete and bail petition is maintainable under Section 167(2)
of Cr.P.C. The present petition was filed on 17.01.2023 nearly after
53 days after the statutory period of 60 days, as such, it cannot
be said that the right of bail under Section 167(2) of Cr.P.C and the
petition are maintainable. In the event of an application being made
on 26.11.2022, the approach of this Court would have been on the
circumstances prevailing then. However, when no application was
made on the 60th day and the petitioner suffering dismissal order of
bail on 07.12.2022, cannot urge the Special Court to entertain an
application for default bail which was filed on 17.01.2023 taking
recourse to the judgment of this Court in the case of
C.Parthasarathy's case (supra). For the aforementioned reasons,
the prayer for directing the Special Judge to entertain the default
bail application vide SR No.548 of 2023 which was filed on
17.01.2023 nearly 113 days after his arrest. Statutory bail
application under Section 167(2) of Cr.P.C has to be made on the
date on which the right accrues which may be 60 or 90 or 180 days
or 12 months as the case may be. Filing an application
subsequently and asking the Court to entertain the application as
'status quo ante', cannot be permitted.
11. Accordingly, the Criminal Petition is dismissed.
Consequently, miscellaneous applications pending, if any, shall
stand closed.
__________________
K.SURENDER, J
Date: 28.02.2023
kvs
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.672 of 2023
Dated: 28.02.2023
kvs
