TMI Blog2023 (3) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... e power of remand is vested in the Court at the very initial stage before taking cognizance under Section 167(2) Cr.P.C and once cognizance is taken, power to remand shifts to the provisions of Section 309 Cr.P.C. It was thus categorically held that in case, on the filing of the charge sheet, cognizance is not taken, the Magistrate may postpone the commencement of, or adjourn, any inquiry or trial, for reasons to be recorded and may by a warrant, remand the accused if in custody for a period of 15 days at a time. Thus, in cases, where though charge sheet is filed, however, sanction is not received, the accused will have no right to bail, however, his remand under Section 167 CrPC will be required to be continued if necessary. In the decisions reported as NATABAR PARIDA VERSUS STATE OF ORISSA [ 1975 (4) TMI 132 - SUPREME COURT ] , it was held that before the Court proceeds to the next stage of Section 309 CrPC, the accused has to be remanded in custody of some Court. The two stages i.e. one under Section 167 CrPC and the other under Section 309 CrPC though different but one follows the other so as to maintain a continuity of the custody of the accused with the Court. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Enforcement as also setting aside of the order dated 24th January 2023 passed by the learned Special Judge and the consequent remand of the petitioner herein till 21st February 2023. 2. The brief background resulting in filing of the present writ petition is that the petitioner was arrayed as an accused in the above-noted ECIR and was arrested on 15th November 2022. The petitioner was remanded to judicial custody for 6 days on 16th November 2022 and thereafter, for 6 days till 22nd November 2022, following which, the petitioner was remanded to judicial custody which order of remand was extended by the learned Special Judge from time to time under Section 167 CrPC. On 13th January 2023, the respondent filed the complaint and the matter was adjourned by the learned Special Judge to 24th January 2023 for consideration on the complaint. On 24th January 2023, learned Special Judge without taking cognizance of the complaint adjourned the proceedings by almost a month i.e. till 21st February 2023 and in the meantime, no remand order was passed. Thus, the petitioner approached this Court by way of the present petition filed on 8th February 2023 which came up before this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement Directorate seeking judicial remand of the petitioner was specifically dismissed by the learned Special Judge as infructuous. He further states that the order dated 13th February 2023 which listed the matter for 14th February 2023 with notice to the learned counsel for the accused and directions to Jail Superintendent to produce the petitioner for Rehnumai on 14th February 2023 and the petitioner being remanded till 17th February 2023 to be produced through video conferencing on the said date, is without jurisdiction and non-est in law. 5. It is further contended by the learned counsel for the petitioner that in any case, the date of return of the present writ petition being 9th February 2023, on which, no order of Rehnumai had been passed, the petitioner was in illegal custody and thus, entitled to be released. Relying upon the decision of the Three Judges Bench of the Hon ble Supreme Court reported as (2013) 3 SCC 77 Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra and Another, it is contended that even after the charge sheet or complaint is filed and no cognizance is taken since the stage as contemplated under Section 309 CrPC does not start, the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed that whether remand under Section 167 CrPC or under Section 309 CrPC, the same cannot be permitted beyond a period of over 15 days at stretch and since without taking cognizance, the learned Special Judge on 13th January 2023 adjourned the matter to 24th January 2023 and thereafter for almost a month i.e. upto 21st February 2023, it is contended that since a judicial order has been challenged, no writ of Habeas Corpus is maintainable. He further contends that be that as it may, if on 13th January 2023 and 24th January 2023, no order of remand was passed before return of the date in the present petition, which would be today since the matter is being heard today, a proper order of remand has been passed by the learned Special Court on 14th February 2023 and hence, the illegality, if any, having been cured, the present petition is liable to be dismissed. Reliance is placed on the decisions reported as AIR 1974 SC 510 Kanu Sanyal Vs. District Magistrate, Darjeeling and Others, Full Bench decision of this Court reported as 1994 Cri.L.J. 1942 Rakesh Kumar Vs. The State and the decision of the Division Bench of this Court in W.P.(Crl.) 824/2020 titled as Aqil Hussain Vs. Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspects of the matter. Ld.Sr.PP submits that he will file the detailed synopsis and complete chart of the money trail as well as the specifications of case property seized in this matter till date. He requests that four weeks time may be given for making further submissions on the point of cognizance. At request, put up on 21.02.2023 at 12.00 noon for taking cognizance. 13.02.2023 File has been put up before the undersigned by the Reader of the Court. Present : XXX XXX XXX It is submitted by the Reader of the Court that the present matter has been fixed for 21.02.2023 but the date for rehnumai of accused Surender Kumar Bansal has not been fixed. Keeping in view of the submissions of Reader, order dated 24.01.2023 has been perused. In the present matter, ED had filed the complaint on 13.01.2023 and the matter was fixed for consideration on 24.01.2023. On 24.01.2023, when the matter was fixed for taking cognizance, certain queries were put to the IO regarding money trail and other relevant aspects of the matter and Ld. Sr.PP for ED requested four weeks time for filing detailed synopsis and complete chart of the money trail as well as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t up for reply and arguments on both the applications on 17.02.2023. Accused is remanded till 17.02.2023 and be produced through VC on the said date. 17.02.2023 The present case file has been placed before the undersigned being 1st Link Special Judge (PC Act) of the court of Sh. Ajay Gupta, Ld. Special Judge (PC Act), who is stated to be on leave today. Present : XXX XXX XXX Reply filed by ED to the application of accused S. K. Bansal opposing further proceedings / purported rehnumai /remand. Copy supplied. Reply also filed by ED to the application of accused S. K. Bansal seeking default bail under Section 167(2) Cr. P. C. Copy supplied. Part arguments heard on the default bail application. Some submissions have been made by Ld. Counsel for applicant which are contrary to the record. I am of the opinion that the default bail application should be heard by the concerned court on date already fixed i.e. on 21.02.2023. Accused is remanded to JC till 21.02.2023 and be produced through VC on the said date and rehnumai is extended till 21.02.2023. It is clarified that the rehnumai today has been extended subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that from the provisions of Section 167 CrPC, it would be amply clear that the Magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that there are adequate grounds for doing so, but no Magistrate is authorized to detain the accused person in custody for a total period exceeding 90 days. The power of remand is vested in the Court at the very initial stage before taking cognizance under Section 167(2) Cr.P.C and once cognizance is taken, power to remand shifts to the provisions of Section 309 Cr.P.C. It was thus categorically held that in case, on the filing of the charge sheet, cognizance is not taken, the Magistrate may postpone the commencement of, or adjourn, any inquiry or trial, for reasons to be recorded and may by a warrant, remand the accused if in custody for a period of 15 days at a time. Thus, in cases, where though charge sheet is filed, however, sanction is not received, the accused will have no right to bail, however, his remand under Section 167 CrPC will be required to be continued if necessary. In the decisions reported as AIR 1975 SC 1465 Natabar Pari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to the institution of the proceedings. 14. It was further held in Rakesh Kumar (supra), Full Bench of this Court held that if up to the date of the hearing of the writ petition, it is shown that the detention of a particular person is valid presently, mere fact that his detention had been invalid earlier would not entitle such a petitioner to have any redress in Habeas Corpus petition. 15. Though learned counsel for the petitioner has seriously challenged that the learned Special Judge could not have taken up the file suo-moto on the request of the Reader on 13th February 2023. Be that as it may, passing of a remand order is a judicial act and realizing the error committed, the learned Special Judge corrected the mistake and vide order dated 14th February 2023, directed the Rehnumai remand of the petitioner. Thus, even if on the date of filing of the petition, the custody of the petitioner was illegal in the absence of an order of remand, however, before the date of return which was 20th February 2023, when the matter was to be heard, the said defect had been rectified and the custody of the petitioner was no more illegal. 16. There is no dispute to the proposition rai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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