2022 (9) TMI 45 - HC - GST

Evasion of GST - creation of bogus firms - issuance of invoices without transportation of goods - whether the police custody / remand of the petitioner-accused can be ordered by the Court pending adjudication and in an interregnum time, when the initial period of 15 days is over? HELD THAT - Considering the provisions of Section 167 of the Cr.P.C., it provides for cases where investigation cannot be completed within 24 hours fixed by Section 57 and the police require more time to investigate. In such a case, the police officer is required to produce the accused before a Magistrate and the Magistrate is given discretion to detain the accused either in police custody or judicial custody. The period during which a Magistrate can remand an accused either in judicial custody or in police custody has been limited for a term not exceeding fifteen days in the whole. The proviso to Section 167 provides for detention of an accused in judicial custody beyond the period of fifteen days, if a Magistrate is satisfied that adequate reasons exists for doing so. However, such a detention is limited to 90 days where the offence is punishable with death, imprisonment for life or for a term not less than ten years and the period is limited to 60 days where the investigation relates to any other offence - sub-section (2) of Section 167 makes it clear that a Magistrate can grant such custody as he thinks fit which means he can grant either police custody or judicial custody. The Investigating Officer is empowered with the provisions of law to investigate thoroughly. Thorough investigation is the base on which the superstructure of the entire criminal jurisprudence exists. The entire criminal trial depends on a material evidence collected during the course of investigation. If, by any means, the investigation is not allowed to be made thoroughly, in that event, the Court would not be in a position to arrive at a just conclusion - the investigation is the heart of the criminal jurisprudence based on which the Criminal Court proceeds to do justice. Thus, the investigation is considered to be the most crucial element in criminal trial. In other words, with the assistance of the able and effective investigation, the Criminal Court can achieve its paramount goal to impart substantial justice. What is relevant to note is that the accused therein was ordered to be on remand in judicial custody. Whereas, in the instant case, the learned Magistrate, while rejecting the application for remand in police custody, has not passed any order granting remand even in judicial custody. Thus, by virtue of the order of the learned Magistrate, in a way, remand of an accused either in police custody or in a judicial custody completely denied, which would be prejudicial to the statutory right of the Investigating Officer to investigate the matter thoroughly - in the case on hand, the learned Magistrate, while rejecting the demand of remand in police custody, has not even granted remand in judicial custody, in that event, completion of initial period of 15 days, would not be fatal to the Investigating Agency. The order passed by the learned Sessions Judge, Jamnagar granting seven days remand cannot be said to be illegal and is hereby upheld - Application dismissed.

Summary

Issues Involved:
1. Legality of the order granting remand beyond the initial period of 15 days from the date of arrest.
2. Statutory rights of the Investigating Officer to seek remand for effective investigation.
3. Applicability of Section 167 of the Code of Criminal Procedure (Cr.P.C.) in the context of remand orders.

Issue-wise Detailed Analysis:

1. Legality of the order granting remand beyond the initial period of 15 days from the date of arrest:

The petitioner challenged the order dated 22nd July 2022, passed by the Sessions Judge, Jamnagar, which granted seven days remand of the petitioner after the initial 15-day period from the date of arrest had expired. The petitioner argued that the order was not tenable in law as it was passed after the completion of the initial 15 days of arrest, contending that police custody can only be given for the initial period of 15 days, beyond which only judicial custody is permissible. The petitioner relied on the decision in Kantibhai Devsibhai Patel vs. State of Gujarat to substantiate this claim.

2. Statutory rights of the Investigating Officer to seek remand for effective investigation:

The State Tax Department argued that the order passed by the Sessions Judge was justified and within the provisions of Section 167 of the Cr.P.C. The State emphasized that the investigation pertains to an economic offense involving substantial financial loss to the government treasury, and the accused's custodial interrogation was crucial for effective investigation. The State contended that the delay in passing the remand order was not due to any fault of the Investigating Officer, who acted promptly to secure the remand.

3. Applicability of Section 167 of the Code of Criminal Procedure (Cr.P.C.) in the context of remand orders:

The court examined the provisions of Section 167 of the Cr.P.C., which allows a Magistrate to authorize the detention of an accused in police custody or judicial custody for a term not exceeding fifteen days in the whole. The proviso to Section 167 allows for detention in judicial custody beyond fifteen days under certain conditions. The court noted that the statutory right of the Investigating Officer to investigate thoroughly cannot be taken away if exercised with due diligence. The court also highlighted that the initial period of 15 days should be considered from the date of arrest and the first remand, either in judicial or police custody.

The court distinguished the present case from the Kantibhai Devsibhai Patel case, noting that in the latter, the accused was remanded to judicial custody, whereas in the present case, the Magistrate had not granted any remand, either in police or judicial custody. Therefore, the completion of the initial 15-day period did not preclude the Investigating Agency from seeking remand.

Conclusion:

The court upheld the order of the Sessions Judge granting seven days remand, stating that it was not illegal and did not require interference. The court dismissed the petition, vacating the interim relief granted earlier. The judgment emphasized that the statutory right of the Investigating Agency to investigate thoroughly is paramount and should not be undermined by procedural delays.