TMI Blog2023 (12) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... ful custody . It is true that an order of remand can be challenged in a Habeas Corpus petition if such an order is passed in an absolutely mechanical or casual manner. The contention of learned Senior Counsels for the petitioners cannot be brushed aside that a valid custody remand can be made in accordance with express provisions of law, when the custody of an arrested person is illegal, such a person is entitled to be released forthwith. The power of remand is vested in the Court, firstly, at the stage of investigation, when the arrested person can be remanded initially either to police custody or judicial custody. Whereas, custody remand under Section 309 Cr.P.C operates only at post cognizance stage after conclusion of investigation when chargesheet is laid before the Court. In the present petitions, in fact, initially after being remanded to police custody, the petitioners were being remanded to judicial custody from time to time under Section 167(2) Cr.P.C by the court of learned ASJ-05 till 07.12.2003. Nature of custody of the petitioners, whether legal or illegal - HELD THAT:- Two situations have emerged when the chargesheet/prosecution complaint is filed in the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing. Can it be said, during the period, when the accused was produced on the last date of hearing and is to be produced before the court on the next date of hearing in execution of production warrants, his judicial custody is illegal - the answer is in negative, as in such a situation, the custody of accused is continuum and there is no break in the custody of such an accused. The position, however, will be different when, the accused is not produced before such a Court on the date of hearing and no production warrant is issued for the said accused on the same date of hearing but is issued subsequently. In such a situation, the custody of the accused will not be in continuum and for the break period, it may be illegal. The submissions made on behalf of the petitioners that the petitioners are suffering illegal custody since 07.12.2023, cannot be sustained - the learned ASJ-04 has rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of learned ASJ-04 - petition dismissed. - HON'BLE MR. JUSTICE SURESH KUMAR KAIT AND HON'BLE MS. JUSTICE SHALINDER KAUR For the Pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the petitioners from illegal detention of the respondents thereby declaring the custody of the petitioners arbitrary and illegal. Factual Background 2. The narration of the basic facts to decide the present petitions is that the Directorate registered an ECIR under the provisions of Prevention of Money Laundering Act, 2002 [hereinafter referred to as PMLA ] for the alleged offence of money laundering under Section 3 of PMLA, punishable under Section 4 of PMLA, based on a scheduled offence allegedly committed under the provisions of the Indian Penal Code, 1860 [hereinafter referred to as IPC ] and more specifically alleged in FIR bearing no. 807 of 2021, dated 05.12.2021, registered at PS Kalkaji, South East District, New Delhi and FIR bearing no. 190 of 2021, dated 13.12.2021, registered at PS Economic Offence Wing, New Delhi. Submission of Petitioners 3. It is submitted by learned senior counsels appearing on behalf of the petitioners that as part of investigation in the ECIR, the petitioners and the fourth co-accused namely Rajan Malik were arrested on 10.10.2023 but at different times. Post arrest, as mandated under Section 167 Cr.P.C, the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned ASJ-05 that the file be transferred to the Court of learned ASJ-04 on the same day to be taken at 2 PM. Therefore, no order came to be passed by learned ASJ-05 on 07.12.2023. Upon appearance before the learned ASJ-04 on behalf of the petitioners by their counsels and the SPPs along with ED, the learned ASJ-04 adjourned the matter for consideration on the aspect of cognizance on 13.12.2023 post lunch and issued production warrants against the petitioners for the said date of hearing. 7. It was further submitted that the Directorate did not bother to file any application seeking extension of judicial custody of the petitioners as mandated under law and also having been done religiously for all the past occasions while seeking extension of judicial custody of the petitioners. It was emphatically submitted in light of the above, it is abundantly clear that there is no order passed by the learned ASJ-04, remanding the petitioners to further judicial custody as is mandated under Section 167 Cr.P.C beyond 07.12.2023. 8. It is submitted by Mr. Hariharan N., learned senior counsel that he conducted an inspection of the remand files before the learned ASJ-05 to ascertain if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ners were not in custody in pursuant to any judicial order granting judicial custody. 11. It was further submitted that issuance of production warrant cannot be equated with an order of remand as is being suggested on behalf of ED, since the order of production warrant is passed under Section 267 Cr.P.C whereas the remand order is given under Section 167 Cr.P.C or under Section 309 Cr.P.C which operate differently and the aforesaid provisions are placed under different Chapters in the Cr.P.C. 12. While concurring with the above submissions, Mr. Vikram Chaudhri, learned senior counsel contended that passing of remand order is a judicial function which cannot be performed mechanically or in a casual manner. The said order is to be passed with due application of mind by the Judicial Officer. Therefore, the custody of petitioners cannot be extended vide order dated 07.12.2023 as petitioners were not produced before the learned ASJ04 in contravention to Section 167(2)(b) Cr.P.C which requires the production of accused person either in person or through video conferencing at the time of extension of custody remand. Reliance was placed on Ramesh Kumar Ravi alias Ram Prasad and etc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the Jail Superintendent for allowing petitioner Hari Om Rai to be produced through video conferencing in the Court. In view of the same, learned ASJ-05 allowed the oral request/application moved on behalf of the petitioners for their production through video conferencing till further orders. It was submitted that the case of the petitioners was transferred to the Court of learned ASJ-04 on the same day at 2 PM. However, inadvertently post lunch till the case was adjourned for next date of hearing, the petitioners were not produced even through video conferencing before the learned ASJ04. In those circumstances, the learned ASJ-04 directed for issuance of production warrants of the petitioners and was pleased to adjourn the matter to 13.12.2023 for the purpose of taking cognizance. He further submitted that ED had already filed the prosecution complaint after culmination of the investigations in the present case on 06.12.2023, therefore, ED did not file any application seeking extension of remand. 15. It was submitted by Mr. Hossain that as the petitioners were not in the custody of ED, however, they were in the judicial custody, therefore, their custody is perfectly lawful a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 days only. In support of his submission, the learned counsel has relied upon the case of Koomar Indraneel v. State of Bihar, [2000 SCC OnLine Pat 847]. 19. It was further submitted by relying on the judgments in the case of Kanu Sanyal v. Distt. Magistrate, [(1974) 4 SCC 141], Serious Fraud Investigation Office v. Rahul Modi [2022 SCC OnLine SC 153], State of Maharashtra v Tasneem Rizwan Siddique [(2018) 9 SCC 745] that in Habeas Corpus proceedings the Court is to have regard to the legality of detention on the date return. Finally, it was contended that the maxim Actus Curiae neminem gravabit is applicable in the present case which validates the custody of petitioners from 07.12.2023 till 13.12.2023 [ V. Senthil Balaji vs The State represented by Deputy Directors and Ors; SLP(Crl) No. 2284-2285/2023 ]. 20. It is to be noted that on 14.12.2023, Mr. Zoheb Hossain, learned Special Counsel for ED appeared physically and Mr. Hariharan N., learned Senior Counsel for petitioner Andrew, appeared through video conferencing along with other counsels for the petitioners, and mentioned before this Court that learned ASJ-04 had extended the judicial remand of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinks 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 Magistrate having such jurisdiction: Provided that- (a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, and may by a warrant remand the accused if in custody: Provided that no Magistrate shall remand an accused person to custody under this section for a term exceeding fifteen days at a time: Provided further that when witnesses are in attendance no adjournment or postponement shall be granted, without examining them, except for special reasons to be recorded in writing: Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him. Provided also that - 1. no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; 2. the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; 3. where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Yadav, ld. counsel for accused Rajan Malik (at S No. 15). (fresh Vakalatnama filed) All the four accused persons are stated to be in JC at Tihar Jail. They are not produced today. The remaining accused persons are the companies and individuals and are stated to be not arrested till date. Asst. Director (PMLA), Tarun Kumar Bhardwaj alongwith Arun Khatri, Enforcement Officer. It is submitted by the respective ld. Defence Counsels that they have not received the copy of the complaint and the allied documents. It is submitted by the Special PP appearing on behalf of ED that the complaint and documents can be supplied to the accused persons once the cognizance is taken on the complainant by the court. It is submitted by ld. counsel for ED that documents in this case are volumnious in 16 trunks. He seeks instructions as to when the documents be handed over to the Ahlmad for scrutiny. Let the documents be handed over to the Ahlmad for scrutiny on 09.12.2023. The Ahlmad shall identify the place in the Ahlmad room where the said 16 trunks can be kept. Put up for consideration on the aspect of cognizance on 13.12.2023 at 2 pm. Issue production warra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at once the investigation stage is completed, the Court proceeds to the next stage, which is the taking of cognizance and trial. An accused has to remain in custody of some court. During the period of investigation, the accused is under the custody of the Magistrate before whom he or she is first produced. During that stage, under Section 167(2) Cr.P.C., the Magistrate is vested with authority to remand the accused to custody, both police custody and/ or judicial custody, for 15 days at a time, up to a maximum period of 60 days in cases of offences punishable for less than 10 years and 90 days where the offences are punishable for over 10 years or even death sentence. In the event, an investigating authority fails to file the charge-sheet within the stipulated period, the accused is entitled to be released on statutory bail. In such a situation, the accused continues to remain in the custody of the Magistrate till such time as cognizance is taken by the Court trying the offence, when the said Court assumes custody of the accused for purposes of remand during the trial in terms of Section 309Cr.P.C. The two stages are different, but one follows the other so as to maintain a continui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, into the period of remand under section 309(2) CrPC without a hiatus. However, where, upon the filing of the charge-sheet, while cognizance is taken, an order of remand under section 309(2) CrPC is not passed immediately but after a few days or so, there appears to be a chasm between a valid detention order under section 167(2) CrPC and a remand to custody order under section 309(2) CrPC. But, in reality there is no such break . It only appears to be so because of the assumption that as soon as the Magistrate takes cognizance of the the remand order passed under section 167(2) CrPC gets extinguished. This assumption is faulty. Once the chargesheet is filed and cognizance is taken, it is true, the investigation having come to an end, recourse to the power under section 167(2) cannot be taken. But, that does not mean that an order validly made under section 167(2) terminates the instant the charge-sheet is filed and cognizance is taken. Such an order would be valid till the duration for which it is made does not expire or till it is by a remand order under section 309(2) CrPC, whichever is earlier in point of time. 31. The second situation is, when the chargesheet/prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also not the case of the petitioners that prosecution complaint was filed by ED beyond the stipulated period thereby entitling the petitioners for default bail . Also no bail application was moved on behalf of any of the petitioners at that time. In such a situation, the petitioners have to remain in custody of court . Thus, the learned ASJ04 rightly directed for issuance of production warrants for the petitioners to be produced in the Court on the next date of hearing. As per record, the said production warrants were issued on 09.12.2023 for production of the petitioners for 13.12.2023 35. A question, we pose to ourselves, assuming a competent court has taken cognizance of chargesheet/prosecution complaint and posts the case at a particular stage of proceedings/trial, however, on the said date of hearing, the accused in that case is not produced from judicial custody, due to some unavoidable reason. In such a situation, the court issues production warrant against the said accused and the case is posted for the next date of hearing. Can it be said, during the period, when the accused was produced on the last date of hearing and is to be produced before the court on the next ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
