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TMI Blog2022 (2) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Court concerned, further made an order hence remanding the accused-respondent, to E.D., custody for a period extending upto 07 days. Subsequently, the Special Public Prosecutor concerned, asked through an application, for a further remand upto seven days, of the accused, to E.D. custody. The afore prayer as carried in Annexure P-4, became declined by the learned Court concerned, through an order made on 18.11.2021. The afore made order is challenged by the Directorate of Enforcement, through its casting the instant petition before this Court. 3. The learned senior counsel for the respondent-accused, has contended with much vigour, before this Court that since Section 167, of the Cr.P.C., carries a mandate that the total period of police custody lasts, only upto a period of 15 days. Therefore, he further contends that since from the date of the initial production, on 11.11.2021, of the accused, before the Court concerned, as became necessitated, on his arrest, by the petitioner herein, the respondent-accused became remanded, for a day, to the custody of the Enforcement Department. Furthermore, he also submits that since thereafter the Court concerned, through an order made on 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 along with the records. When the arrested accused is so transmitted the Judicial Magistrate, for the remaining period, that is to say excluding one week or the number of days of detention ordered by the Executive Magistrate, may authorise further detention within that period of first fifteen days to such custody either police or judicial. After the expiry of the first period of fifteen days the further remand during the period of investigation can only be in judicial custody. There cannot be any 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in verdict (supra), whereas, and rather the guiding legal principle enshrined therein, is to be marshalled only after a scrutiny of the facts borne thereins. Therefore, he argues that hence the impact of the singular expression (supra), is to be gauged from readings there alongwith of the facts carried thereins. 6. Furthermore, he submits with extreme vigour before this Court that the total spell of 15 days of police custody, as contemplated in Section 167 Cr.P.C., if interrupted or halted by the Court concerned, rather declining the request of the Public Prosecutor concerned, to remand the accused concerned to police custody are legally inconsequential, in making the relevant statutory computation. Therefore, if the afore made interruptions or halts rather lead to the accused being put to judicial custody, they would not also curtail, the revisional or supervisory jurisdiction(s) of superior Courts, to test the legality and propriety of the afore declinings of police remand, by the Court concerned. In case the afore jurisdiction is permitted to be fettered, on the strength of the afore made arguments, thereupon, the very purpose of provisions carried in Section 397 Cr.P.C., or, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. In the afore endeavour this Court, has made an in-depth and circumspect reading of the facts carried therein. A reading of the factual matrix carried therein, unfolds that one Kulkarni was arrested on 4.10.1991, and, was produced before the Chief Metropolitan Magistrate on 05.10.1991. On date (supra), on the request of the CBI, he was remanded to judicial custody on 11.10.1991. However, on 10.10.1991, a test identification parade was arranged, but one Kulkarni refused to cooperate, and, his refusal was recorded by the Magistrate concerned. Moreover on 11.10.1991, an application was moved by the investigating officer seeking the police custody of the afore Kulkarni, and, it was allowed. However, when Mr. Kulkarni was being taken, on the way, he pretended his indisposition, and, was taken to hospital, and, the same evening, he remained confined on the ground of illness upto 21.10.1991, and, thereafter he was referred to Cardiac Out-patient Department of G.B. Pant Hospital. Subsequently, upto 29.10.1991, Mr. Kulkarni was again remanded to judicial custody by the learned Magistrate concerned, and, thereafter was sent to jail. Though, the police applied for taking Mr. Kulkarni into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to thereafter untenably transpose the hitherto judicial custody of Mr. Kulkarni to police custody, therefore, obviously the afore untenable transposition became deprecated by the Hon'ble Apex Court. 11. Therefore, the relevant stage for computing whether there is an untenable transposition from judicial to police custody, is the incipient stage, inasmuch as, upon, the initial production of the accused before the Court concerned, the latter remanding him to police or judicial custody. If at the incipient stage (supra), the accused is put to judicial custody, thereupon the learned Court concerned cannot thereafter put him to police custody. Doing so would attract the prohibition (supra) carried in verdict (supra). 12. In the wake of afore factum probandum, inasmuch as the initial custody into which Mr. Kulkarni was put, being judicial custody, and, thereafter it being strived, to be converted or transposed into police custody, that the Hon'ble Apex Court, made expressions (supra) that the afore transposition from judicial to police custody, is illegal and, also is not within the provision(s) of Section 167 Cr.P.C. The implied reason(s) being that, if the Public Prosecutor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused from judicial to police custody, reiteratedly when the principle of law postulated in verdict (supra), is stricto sensu applicable only with the domain of facts above, as contained therein, and, when the facts herein are distinct, and, contrary to the facts therein, hence the verdict (supra) becomes rather distinguishable, and, is inapplicable to the extant lis. Therefore, on applying the doctrine of relating back, for ably facilitating this Court, to test the validity of the impugned order, the running of the spell of 15 days from 11.11.2021, cannot be taken to become halted or paused, only by the making of the impugned order, rather when through a valid interference being made, qua it, by this Court, the broken spell of E.D custody becomes reanimated, and, lasts upto the spell of 15 days, to be reckoned since the date of initial production of the accused before the remanding Court concerned, becoming completed. In consequence, the arguments addressed before this Court, by the learned counsel for the petitioner, are accepted, and, the arguments, addressed before this Court, by the learned counsel for the respondent-accused, are rejected. 15. Be that as it may, this Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and developments need to be investigated into, which would not be possible without the custodial interrogation of accused. H. That the non-cooperation shown by accused demonstrates his deliberate concealment of material evidence. As narrated above, his conduct is only with the intent to jeopardize the investigation. His custodial interrogation is therefore required for an effective investigation to bring the instant case to its logical conclusion. 16. Bearing in mind the afore grounds, as carried in the application, as made for the relevant purposes, by the petitioner herein before the Court concerned, it has to be determined whether all of them became borne, in mind by the learned Judge concerned, in his making the impugned order. A reading of the impugned order, unfolds that even prior to the accused being arrested, he had been repeatedly summoned on 11 occasions, by the Enforcement Directorate, and, it also reveals that during the afore period of time, 88 hours were spent by the officials of the Enforcement Directorate with the respondent-accused. Moreover, a reading of the impugned order also details, that the accused-respondent, had argued before the Court concerned, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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