Whether accused prosecuted under prevention of money laundering Act can get bail as per S 167 of CRPC?

We may record that as per the provisions of Section 4(2) of the Code of Criminal Procedure, 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 Code of Criminal Procedure to the trials under the PMLA Act. Thus, not only that there is no provision in the PMLA Act excluding the applicability of Code of Criminal Procedure, on the contrary, provisions of Code of Criminal Procedure are incorporated by specific inclusion. 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.

5. We may also refer to judgment of this Court in 'Directorate of Enforcement v. Deepak Mahajan and Anr.' [MANU/SC/0422/1994 : 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.

6. We, thus, do not agree with the opinion of the High Court that the provisions of Section 167(2) Code of Criminal Procedure would not be applicable to the proceedings under PMLA Act. In the present case, as no complaint was filed even after the expiry of 60 days from the date when the Appellant was taken into custody, he was entitled to statutory bail in view of the provisions contained in Section 167(2) Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 566 of 2017 

Decided On: 22.03.2017

Ashok Munilal Jain Vs.  Assistant Director, Directorate of Enforcement

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 16 SCC 158

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When accused should not be released on default bail?

The petitioner was taken in judicial custody on 1st of
February, 2016. He sought compulsive bail in terms of Section 167(2)
of the Code of Criminal Procedure on 10th of May, 2016 on the ground
that the charge-sheet has not been put up before the Court within 90
days. The learned Trial Court passed an order on the same day at 11.50
A.M. allowing the bail to the petitioner but at 12:30 P.M. before the
petitioner could be released, an application was filed by the
Investigating Officer for extension of time to submit charge-sheet in
terms of the provisions of the Act which grants 180 days time for 
submission of the charge-sheet if sufficient cause is shown to the
Court. It is on the said application, the Court passed an order granting
15 days more time to the Investigating Officer to file charge-sheet.
Admittedly, the charge-sheet has since been filed within the time so
granted.
In Nirala Yadav‟s case (supra) it has been held that
right of the bail has to be seen on the day when the application for bail
is filed. The Court said to following effect:
“ 47. ……………….In the instant case, the day the accused filed the
application for benefit of the default provision as engrafted under proviso to
sub-section (2) of Section 167 CrPC the Court required the accused to file a
rejoinder-affidavit by the time the initial period provided under the statute
had expired. There was no question of any contest as if the application for
extension had been filed prior to the expiry of time. The adjournment by the 

learned Magistrate was misconceived. He was obliged on that day to deal
with the application filed by the accused as required under Section 167(2)
CrPC. We have no hesitation in saying that such procrastination frustrates
the legislative mandate. A court cannot act to extinguish the right of an
accused if the law so confers on him. Law has to prevail. The prosecution
cannot avail such subterfuges to frustrate or destroy the legal right of the
accused. Such an act is not permissible. If we permit ourselves to say so, the
prosecution exhibited sheer negligence in not filing the application within
the time which it was entitled to do so in law but made all adroit attempts to
redeem the cause by its conduct.”
7. A further perusal of the reported judgment would
show that the accused was sent to the judicial custody on 05.12.2006
and on 14th of March, 2007, an application for release of bail under
Section 167(2) Cr. P.C. was filed. It was on 15th of March, 2007, i.e.
on the next day, an application was filed for extension of time by the
Investigation Officer. In Nirala Yadav‟s case, the Court interfered as
the application for extension of time was filed after the right for
compulsive bail accrued to the petitioner. In the present case, though
the application for compulsive bail was filed prior in time, but it was
on the same day, the Investigating Officer sought extension in time and
the extension in time was granted on the same day. Therefore, the rigor
of law laid down in Nirala Yadav‟s case (supra) cannot be extended to
the facts of the present case.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.550 of 2016

Suresh Kora,V The State of Bihar,
CORAM: MR. JUSTICE HEMANT GUPTA

Date: 20-09-2016
Citation: 2017 CRLJ(NOC)85 Pat

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