Accused Who Surrenders Before Court Can't Be Taken In Custody When Court Hasn't Issued Summoning Order After Taking Cognizance: Supreme Court

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Supreme Court has observed that an accused cannot be taken into custody when he voluntarily surrenders before the Court even though the Court which has taken cognizance of the chargesheet has not issued a summoning order against him.

The Court further stated that a bail application filed by such an accused, who voluntarily surrendered even in the absence of a summoning order, cannot be entertained.

"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 stated. A bench comprising Justices Bela M Trivedi and Pankaj Mithal was hearing a petition filed by Souvik Bhattacharya, son of TMC MLA Manik Bhattacharya, who was remanded to custody in a money laundering case in January 2023, after his surrender before the trial court.

In the instant case, the Trial Court had taken cognizance against Souvik on the complaint filed by the Enforcement Directorate for the offences under the Prevention of Money Laundering Act. Though no order was passed by the Court to summon him, the summons was issued to the appellant. Pursuant to the summons, the appellant voluntarily surrendered before the Court.

Consequently, when he applied for his bail, the same was rejected by the Trial as well as the High Court. Against this backdrop, the matter reached before the Top Court.

Senior Counsel Mr. Siddharth Luthra, appearing on behalf of Souvik, contended that he can't be remanded to custody in the absence of the summoning order. He further argued that the accused cannot be summoned in the absence of the summoning order by the court.

Notably, during the hearing, Luthra acceded that a mistake had been committed by the lawyer who had filed a bail application before the trial court in the absence of the summons order.

It may be recalled that it was in this respect Justice Trivedi remarked last week that lawyers should undergo a compulsory training program.

In yesterday's order, the Apex Court observed a basic flaw in the proceedings conducted before the Trial Court. The Court also criticized the Trial Court for its 'non-application of mind' given that the summons was issued without any order.

"This is one of the cases of non-application of mind by the Court, wherein the Special (CBI) Court no.1 (hereinafter referred to as the Special Court) though had not passed any order summoning the present appellant (accused No.10), on taking the cognizance of the offences under the Prevention of Money Laundering Act, 2002 (for short PMLA) vide order dated 07.12.2022, issued summons to the appellant in the Form."

Moving forward, the Court also observed a misconception of fact and law while applying for bail before the Trial Court.

“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.

In this backdrop, the Court ordered the release of the accused on bail, while clarifying that it was not expressing any opinion on merits.

“It is needless to say that it will be open for the Special Court to pass appropriate orders, as also will be open to the respondent – ED to file appropriate proceedings as may be permissible under the law, as the exigency may require.,” the Court concluded.


(2024 SC)