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Rajiv Jain & Sanjay Jain Versus State & Anr.

2017 (9) TMI 433 - DELHI HIGH COURT

Remanding the accused persons beyond period of fifteen days as mandated by Section 167(2) of the Cr.P.C.- offence under PMLA - Procedure when investigation cannot be completed in twenty four hours - Held that:- Admittedly, since both the petitioners were produced before the learned Special Judge under PMLA for first time on 22nd August, 2017, the total period of custody/remand could not have been allowed beyond 5th September, 2017 when they would be completing fifteen days in custody. Learned AS .....

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lic Prosecutor is the officer of the court and not the persecutor. He is supposed to assist the court in proper perspective. Before forwarding application for extension of remand by 14 days, he should have meticulously examined it to ensure that no violation of Section 167(2) of Cr.P.C. takes place. It is noted that the total period of custody with the police cannot exceed 15 days and at the time of making an application for extension of remand by 14 days, the accused had already been in custody .....

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trite that the Special Judge under Prevention of Money Laundering Act, 2002 (in short PMLA )/Magistrate is not a wing of the Police but is part of the judicial set up of the country. The order has to be passed by a Judicial Magistrate acting in a judicial capacity. It is therefore, his duty to see that the custody is the right custody and the order has to be passed with the ultimate object of securing justice. He has to act independently to determine the nature of the custody. He can change nat .....

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een days there can be more than one order changing the nature of such custody either from police to judicial or vice-versa. This position in law settled by the Division Bench of this Court long back in the case of State (Delhi Admn.) v. Dharam Pal, (1982) 21 DLT 50, was approved by the Hon ble Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni, (1992) 3 SCC 141, while interpreting Section 167 (2) of the Cr.P.C. 3. Raising these questi .....

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anded to another spell of ED/Police custody for 10 days. 4. Earlier both the petitioners were produced before the learned Special Judge on 22nd August, 2017 when they were remanded to ED custody for three days. They were again produced before the learned Special Judge on 25th August, 2017 and were remanded to judicial custody for three days. By impugned order dated 28th August, 2017, learned Special Judge remanded them for ten days which is obviously beyond fifteen days of their custody. 5. Open .....

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ur hours-(1) ……… (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magist .....

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r imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub- section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authoris .....

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dy of the police. Explanation I.- For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation II.- If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified .....

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nvestigation and not detention without trial. The language used in the Section allows the Magistrate from time to time to pass an order placing the accused in such custody as he deems fit. Under Section 167(2) of the Cr.P.C., the Magistrate has power to alter the nature of the custody from judicial custody to police custody and vice-versa during the first period of fifteen days mentioned in Section 167(2) of the Cr.P.C. After the expiry of first period of fifteen days, the accused can only be ke .....

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nder: We completely agree with Hardy, J., in coming to the conclusion that the Magistrate has to find out whether there is a good case for grant of police custody. There is no sign in the Section that the nature of the custody cannot be altered. In fact, experience would show that investigation would be hampered and made more difficult if the nature of the custody was not capable of alteration in the first 15 days. It might be necessary to send the accused to a hospital for examination, or to pr .....

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ght be shortened by remanding the prisoner to judicial custody while the police is collecting the necessary material for further investigation. There can be many examples of this type dependent on the circumstances of the case. 9. The Apex Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni (supra) while upholding the view of the Division Bench of this Court held that Section 167(2) is clear in its terms. The Magistrate under this section can .....

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gistrate. 10. It would be appropriate to refer paras 8 and 13 of the said judgment which read as under: 8. Having regard to the words in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole" occurring in Sub-section (2) of Section 167 now the question is whether it can be construed that the police custody, if any, should be within this period of first fifteen days and not later or alternatively in a case if such remand had not been obtained or the nu .....

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rwise than in the custody of the police beyond the period of fifteen days" in the proviso it has to be held that the custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days. To this extent the view taken in Dharam Pal's case is correct. 13. Whenever any person is arrested under Section 57 Cr. PC he shou .....

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of detention cannot exceed fifteen days in the whole. Within this period of fifteen days there can be more than one order changing the nature of such custody either from police to judicial or viceversa. If the arrested accused is produced before the Executive Magistrate he is empowered to authorise the detention in such custody either police or judicial only for a week, in the same manner namely by one or more orders but after one week he should transmit him to the nearest Judicial Magistrate a .....

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detention in the police custody after the expiry of first fifteen days even in a case where some more offences either serious or otherwise committed by him in the same transaction come to light at a later stage. But this bar does not apply if the same arrested accused is involved in a different case arising out of a different transaction. Even if he is in judicial custody in connection with the investigation of the earlier - case he can formally be arrested regarding his involvement in the diff .....

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ninety days or sixty days has to be computed from the date of detention as per the orders of the Magistrate and not from the date of arrest by the police. Consequently the first period of fifteen days mentioned in Section 167(2) has to be computed from the date of such detention and after the expiry of the period of first fifteen days it should be only judicial custody. 11. Admittedly, both the petitioners were arrested by the ED on 22nd August, 2017. On the same day they were produced before t .....

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Court in State (Delhi Admn.) v. Dharam Pal (supra) and by the Apex Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni, (supra), and despite the objection taken by learned counsel for the accused/petitioners granted 10 days ED police custody of both the petitioners to the investigation officer for completion of the investigation in the case. 12. Today, when the matter was taken up in the first call in the prelunch session, learned Central Gove .....

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pugned order remanding the petitioners cannot be termed per se illegal though the detention would have become illegal beyond fifteen days from the date when they were first produced before the learned Special Judge. He further submits that the impugned order dated 28th August, 2017 remanding the petitioners stands merged with the latest order passed today by which they were sent to judicial custody. 14. Per contra, the learned counsel for the petitioners submits that the impugned order of the le .....

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n they would be completing fifteen days in custody. Learned ASJ could not have given the police/ED remand for more than fifteen days after the petitioners were produced on 22nd August, 2017. Therefore, the impugned order of the learned Special Judge dated 28th August, 2017, being per se illegal, perverse and whimsical, is set aside to the extent of remanding the accused persons beyond period of fifteen days as mandated by Section 167(2) of the Cr.P.C. The Judicial Officers/MM/Special Judges whil .....

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