Supreme Court: PMLA Accused Who Has Spent Half Of Maximum Sentence As Undertial Can Be Given Bail Under S.436A CrPC

In the facts of this case, the appellant will

complete 3½ years of incarceration on 26th May, 2024.

Thus, he will complete half of the prescribed sentence.

In this case, obviously the trial has not started, as the

charge has not been framed. This Court has held that

Section 436A of the Code of Criminal Procedure, 1973 (for

short "CRPC") will apply even to a case under the PMLA.

But the Court can still deny the relief owing to the

ground such as where the trial was delayed at the

instance of the accused. As stated earlier, here there is

no occasion for the appellant to cause the delay in

trial, as even charge has not been framed. Moreover,

there is no other circumstance brought on record which

will compel us to deny the benefit of Section 436A of the

CRPC to the appellant. {Para 3}

4. The learned Additional Solicitor General submitted

that the power under Section 436A of the CRPC has to be

exercised by the Court of first instance.

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.2601-2602 OF 2024

AJAY AJIT PETER KERKAR  VS. DIRECTORATE OF ENFORCEMENT & ANR.

Dated: May 16, 2024.

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Leading judgment on law of pre-emption

The issue to be decided is a legal issue which stands in a narrow compass. Before dealing with the issue itself, it would be pertinent to refer to the Constitution Bench judgment of this Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., MANU/SC/0405/2001 : (2001) 8 SCC 24 wherein this Court considered the effect of the amendment made to the 1913 Act. This Court held that if Section 15 of the 1913 Act was amended during the pendency of the appeal before the Supreme Court, the decree of pre-emption would not be affected by such amendment. After discussing the entire law, the Constitution Bench culled out the following legal principles:

10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:

1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.

3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.

4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

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Whether higher courts can order restitution after reversal of decree?

The limited question is whether this Court can grant restitution. Prior to Amendment Act, 1976, an application for restitution Under Section 144 in all cases had to be made to the Court of first instance. Ever since the amendment the substituted expression 'the Court which passed the decree or order' would as per Clause (a) of the explanation, mean the Court of first instance because the expression 'the Court which passed the decree or order' has been deemed to include where the decree or order has been varied or reversed in exercise of appellate or revisional jurisdiction, the Court of first instance. The present one is the simplest case where the suit in favour of the appellant and against the surety was decreed by the trial court, i.e. the Court of first instance, and this decree has been reversed by the High Court in exercise of its appellate jurisdiction. In such a situation Clause (a) of the explanation would be attracted and an application for restitution will have to be made to the Court of first instance, i.e. the Court of Civil Judge, Senior Division, Gondal. It is nowhere suggested that such a Court does not exist. Therefore, it would not be proper for this Court to direct restitution. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 1058 of 1970

Decided On: 30.04.1980

State Bank of Saurashtra Vs.Chitranjan Rangnath Raja and Anr.

Hon'ble Judges/Coram:
A.C. Gupta, D.A. Desai and E.S. Venkataramiah, JJ.
Citation:(1980) 4 SCC 516.

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Whether transferee executing court can entertain application for restitution?

The question, therefore, is whether the transferee executing court is a 'Court of first instance' within the meaning of Section 144(1), C.P.C. A bare reading of Sub-section (1) does indicate that the application for restitution would lie when the decree executed is reversed or varied or modified. The doctrine of restitution is based upon the high cardinal principle that the acts of the Court should not be allowed to work in injury or injustice to the suitors. Section 144, therefore, contemplates restitution in a case where property has been received by the decree-holder under the decree, which was subsequently either reversed or varied wholly or partly in those proceedings or other proceedings. In those set of circumstances law raised an obligation on the party that received the benefit of such reversed Judgment to restitute the property to the person who had lost it. In that behalf in Sub-section (2) a right of suit was taken out and an application under Sub-section (1) was contemplated for execution of the decree by way of restitution. Sub-section (1) clearly indicates that it is a 'court of first instance' in which the proceedings in the suit had been initiated and a decree was passed or the suit was dismissed, but subsequently on appeal decreed or vice versa. The court of first instance would, therefore, mean the court which passed the decree or order. The transferee executing court is not the court that passed the decree or order, but the decree was transmitted to facilitate execution of that decree or order since the property sought to be executed or the person who is liable for execution is situated or residing within the jurisdiction of that executing court. Therefore, the court which is competent to entertain the application for restitution is the court of first instance i.e. Administrator's Court (Subordinate Judge) that decreed the suit, and not the court to which the decree was transmitted for execution. The court of first instance of Administrator is now designated as Court of Subordinate Judge, but application for restitution was filed in executing court, namely, the court of District Munsif at Androth. Thus in the face of the language of Section 144, the District Munsif at Androth, by no stretch of imagination be considered to be court of first instance. Its order of restitution is without jurisdiction and, therefore, it is a nullity. The High Court is accordingly right in its conclusion that the order for restitution is clearly vitiated by error of law and lack of jurisdiction. 

Equivalent Citation : AIR 1994 SC 1591

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2422 of 1977

Decided On: 04.08.1993

Neelathupara Kummi Seethi Koya Phangal (dead) by L.Rs.
Vs.
Montharapalla Padippua Attakoya and others

Hon'ble Judges/Coram:
K. Ramaswamy and S. Mohan, JJ.

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