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TMI Blog2017 (9) TMI 433X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for 6 days meaning thereby that he could not have been sent to police custody for more than 9 days. There was thus no occasion for seeking ED remand for 14 days. - W.P.(CRL) 2466/2017, W.P.(CRL) 2484/2017 - - - Dated:- 4-9-2017 - MR. VINOD GOEL J. Petitioner Through: Mr. Vijay Agarwal, Adv. with Mr. Mudit Jain, Mr. Neeraj Kr. Jha and Ms. Barkha Rastogi, Advs. Respondents Through: Ms. Kamna Vohra, ASC for State. Mr. Amit Mahajan, CGSC with Mr. Kunal Dutt, Adv. for UOI. VINOD GOEL, J. (Oral) 1. It is 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral grounds but for the purpose of disposal of this petition, he only presses the ground of exercising of the power by the learned Special Judge to extend the remand beyond fifteen days. 6. Here, it is relevant to advert to Section 167(2) of the Cr.P.C. which reads as under: 167. Procedure when investigation cannot be completed in twenty four 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 Magistrate having such jurisdiction: Provided that,-- (a) the Magistrate may authorise 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 adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 kept in judicial custody or any other custody ordered by the Magistrate but certainly not in police custody. 8. While referring a judgment of the Single Bench of this Court in State v. Mehar Chand, (1969) 5 DLT 179 , the Division Bench held that the only object of restricting the power of the police to detain the accused in their custody for a total period of fifteen days is to prevent the use of third degree methods by them. The Division Bench while agreeing to the view of Hardy, J., observed as under: 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 capabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by the proviso. The decisions mentioned above do not deal with this question precisely except the judgment of the Delhi High Court in Dharam Pal's case. Taking the plain language into consideration particularly the words otherwise 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 should be produced before the nearest Magistrate within 24 hours as mentioned therein. Such Magistrate may or may not have jurisdiction to try the case. If Judicial Magistrate is not available, the police officer may transmit the arrested accused to the nearest Executive Magistrate on whom the judicial powers have been conferred. The Judicial Magistrate can in the first instance authorise the detention of the accused in such custody i.e., either polic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the learned Special Judge under PMLA who remanded them for three days ED custody. They were again produced before learned Special Judge on 25th August, 2017 and they were remanded to judicial custody for three days. They were again produced on 28th August, 2017 before learned ASJ and the ED requested for 14 days custody for both the petitioners and the learned ASJ without applying his mind to the relevant provision of Section 167 (2) of Cr.P.C. and the law laid down by the Division Bench of this 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 Government Standing Counsel, on instru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody either from police to judicial or vice-versa. The Judicial Officer shall ensure that from the first day of his production before him, the accused cannot be sent to police custody after completion of fifteen days. After the expiry of first period of fifteen days, the accused can only be kept in judicial custody but certainly not in police custody. The Judicial Officer is not a post office or mouthpiece of the prosecution and should act in a judicial manner and ensure compliance of Section 167(2) Cr.P.C. and law laid down by Hon ble Supreme Court of India in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni (supra) and this Court in State (Delhi Admn.) v. Dharam Pal (supra) in its letter and spirit. The purity of justice must be maintained at all cost. It is not out of place to mention that the Public 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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