India: Section 167 (2) Of The CR.P.C. For Statutory Bail Applicable In PMLA (AML) Cases – Maximum Period Of Detention With Out Filing Of Charge Sheet

Last Updated: 10 April 2018
Article by Vijay Pal Dalmia, Partner and Rajat Jain

Article by Vijay Pal Dalmia, Advocate,
Supreme Court of India and High Court of Delhi,
Partner & Head of Intellectual Property Laws Division, Vaish Associates Advocates, India
Email: vpdalmia@vaishlaw.com Mobile: +919810081079

Rajat Jain, Advocate
Email: rajatjain@vaishlaw.com Mobile: +919953887311

Citation: In the supreme court of India Criminal Appellate Jurisdiction, Criminal Appeal no. 566 of 2017 (Arising out of SLP (Criminal) No. 2301 of 2017) titled Ashok Munilal Jain And Anr.   vs. Assistant Director, Directorate Of Enforcement available at http://supremecourtofindia.nic.in/jonew/courtnic/rop/2017/8564/rop_909513.pdf

In the above case the Hon'ble Supreme Court held that the position in law stated by the Trial Court does not appear to be correct, because as per the provisions of Section 4(2) of the Cr.P.C., the procedure contained therein applies in respect of special statutes as well unless the applicability of the provisions is expressly barred. Moreover, Sections 44 to 46 of the PMLA Act specifically incorporate the provisions of Cr.P.C. to the trials under the PMLA Act.  Thus, not only that there is no provision in the PMLA Act excluding the applicability of Cr.P.C., on the contrary, provisions of Cr.P.C. are incorporated by specific inclusion. 

Supreme Court further held that even Section 65 of the PMLA Act itself settles the controversy beyond any doubt in this behalf which reads as under:

"65. Code of Criminal Procedure, 1973 to apply.-

The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far 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."

While deciding the case, reference was also made to the case of 'Directorate of Enforcement v. Deepak Mahajan and Another' [1994 (3) SCC 440] wherein it was held as under:

"141. In the result, we hold that sub-sections (1) and (2) of Section 167 are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and 104 of Custom Act and that the Magistrate has jurisdiction under Section 167(2) to authorise detention of a person arrested by any authorised officer of the Enforcement under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA."

The Hon'ble Court decided that the  appellant  was entitled to statutory bail in view of the provisions contained in Section 167(2) Cr.P.C, and the  appellant  was  given  the  benefit  of statutory bail.

The case pertained to an Enforcement Case Information Report (ECIR) No. ECIR/CEZO/19/2016 which was registered by the Directorate of Enforcement, Chennai, essentially against the appellant, on the on the basis of a criminal case registered by the CBI, Chennai. The appellant was arrested.   He filed application for bail under Section 439 of the Code of Criminal Procedure (Cr.P.C.). During the pendency of the said  bail  application,  the  appellant  filed  another application praying for grant of statutory bail as, according to him, when the period of 60 days of judicial custody of the appellant was over, no complaint was filed.   He, thus, invoked the provisions of Section 167 (2) of the Cr.P.C. while requesting for statutory bail.  Both these applications were dismissed by the Trial Court.  Application for grant of bail was dismissed on merits.   The application for statutory bail filed under Section 167(2) Cr.P.C. was dismissed by the Trial Court holding that the provisions of Section 167(2) Cr.P.C. are not applicable to cases arising out of Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA Act').  The appellant challenged this order in the High Court.  The High Court also affirmed the order of the Trial Court and dismissed the petition of the appellant accepting the reasons given by the Trial Court that provisions of Section 167(2) Cr.P.C. are not applicable in the cases arising out of PMLA Act.

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Vijay Pal Dalmia, Partner
Rajat Jain
 
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