ED vengeful complainant; cannot accept whimsical demand for mechanical extension of judicial custody of accused: Mumbai court

A Mumbai court last week has made some strong observations against the Enforcement Directorate (ED), calling it a vengeful complainant..Special Judge MG Deshpande said that a court cannot join hands with ED to humiliate accused persons by continuing their judicial custody, and giving in to the whimsical demand of ED for automatic extension of judicial custody of accused persons will amount to violation of liberty of accused under Article 21."This Court strongly feels that it cannot join hands with vengeful complainant like ED to humiliate accused persons by continuing their judicial custody that too, in utter disregard to the recent law of the land," the order said. The Court noted that in situations where there is allegation of illegal detention, but there is evidence against the accused to substantiate the offence, courts generally keep their hands off. "Exactly taking advantage of this, the ED eccentrically and whimsically cannot say that their has to be an automatic extension of judicial custody, as per practice and procedure of this Court, particularly in the teeth of the recent decision and guidelines of the Hon'ble Apex Court in the case of Vijay Choudhary," the Court ruled.The ruling came while discharging two PMLA accused in a money laundering case after it was pointed out that the investigation into the predicate offence against them had been closed..Background.The peculiar facts of the case were that the predicate offence against the two accused had been closed after a closure report had been filed by the investigation agency and the same was accepted by the trial court.In a July 27 judgment upholding provisions of the Prevention of Money Laundering Act (PMLA), the Supreme Court had held that acquittal or discharge in the predicate offence or quashing of such offence will lead to acquittal or discharge in the offence of money laundering as well.Applying those observations to the present case, the special court granted discharge to the accused in the money laundering offence..The Court was also dealing with the application of the accused where they opposed the application of the Enforcement Directorate (ED) seeking extension of their judicial custody. The Court in its order made important observations while deciding both applications..On powers of Court to remand accused in custody during pendency of trial when it has been informed about illegal detentionThe Court observed that there has to be an effective check against the unscrupulous exercise of power by ED in seeking casual extensions of judicial custody.“It is a grey area in the sense that, generally Courts keep their hands off, when there is evidence against the accused to substantiate the offence," the Court noted.The ED has been taking advantage of this to keep persons in judicial custody, the Court said.Therefore, ordering interim release of the accused, wherever necessary will effectively deter abuse of the process of criminal law for objects extraneous to its cause."If this power (to extend judicial custody) is exercised in utter disregard to the mandate of law, the right under Article 21 of the Constitution will be in danger of extinction. The Court who is the protector of the rights of citizens (under trial prisoners) will become 'predator' of the rights," the judge added. .On acceptance of closure report and its impact on PMLA caseThe Court reiterated that filing and acceptance of C-summary will amount to a complete shut down of proceedings prior to filing of chargesheet, leading to complete absolving of accused by a competent court.That order would attain finality if it is not challenged before the competent court having jurisdiction by ED, informant or anyone else, the Court said.“Keeping both accused in detention by way of further judicial custody was not warranted. In the absence of good grounds for satisfaction of Court, extending judicial custody mechanically following previous practice of court is completely illegal,” the judge made it clear..On discharge being grantedThe Court concluded that in the absence of scheduled offence, no proceeds remained as evidence against the accused for prosecution in money laundering case."When this situation is glaring, court cannot continue the trial of the present accused as if the court is post office to frame the charge at the behest of prosecution," the Court said.On the order being likely to be followed and used by other courtsThe Court also responded tothe contention that this order which is first of its kind, may be used in other courts."Law of precedent nowhere recognizes such order passed by this court of first instance. Even the whole judiciary in the country subordinate to all High Courts also knows well that such order passed by this court cannot be used or has any binding effect," the judge concluded. .[Read Order]