Court Cannot Entertain Bail Application Of An Accused Who Voluntarily Surrendered Despite Absence Of Order For Issuance Of Summons/Warrant: SC
The Supreme Court observved that a Court, under Section 437 CrPC, cannot entertain bail application of an accused who voluntarily surrendered despite absence of order for issuance of summons/warrant.
The Special (CBI) Court (Special Court) had taken cognizance of offences under PMLA and issued summons to the appellant under Section 61 CrPC following which the appellant voluntarily surrendered before the Special Court. However, after applying for bail, his bail was rejected by both the Special Court and the High Court.
Justice Bela M. Trivedi and Justice Pankaj Mithal observed, “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 the police station or appears or is brought before the Court other than the High Court or Court of Session, he could be released by the Court on bail under Section 437 of Cr.P.C.”
"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 Court said
Senior Advocate Sidharth Luthra and Mukul Rohatgi represented the appellant, while ASG S.V. Raju appeared for the respondent.
The Supreme Court pointed out that there was no order passed by the Special Court for issuance of the summons or warrant against the appellant, and yet summons was issued and served upon the appellant, pursuant to which he surrendered himself.
The Court remarked, “We fail to understand as to how summons came to be issued 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.”
The Court explained that although there was no order passed by the Special Court for issuance of summons or warrant against the appellant, a summons under Section 61 was issued and 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, the Court stated that the application of the appellant seeking bail could not have been entertained in the first place.
The Court noted, “There was a basic flaw in the proceedings conducted before the Special Court.”
The court held, “In absence of any order for issuance of summons or warrant under Section 204 or under any other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor he could have been arrested or taken into custody.”
The Court observed that in the absence of any order for issuance of summons or warrant under Section 204 or other provision of Cr.P.C., the summons could not have been issued or served upon the appellant nor could he have been arrested or taken into custody.
Accordingly, the Supreme Court granted the bail and allowed the appeal.
Cause Title: Souvik Bhattacharya v. Enforcement Directorate, Kolkata Zonal Office - II
Appearance:
Appellant: Senior Advocate Sidharth Luthra and Mukul Rohatgi; AOR Diksha Rai; Advocates Sheezen Hashmi, Mihir Joshi, Akash Dubey, Arijit Dey, Atiga Singh and Apurva Sachdev
Respondent: ASG S.V. Raju; AOR Mukesh Kumar Maroria; Advocates Zoheb Hussain, Annam Venkatesh, Sairica Raju, Chandra Prakash, Kanu Agrawal and Rukhmini Bobde