9911796707
TMI Blog2022 (4) TMI 1043X X X X Extracts X X X X X X X X Extracts X X X X ..... ion are as under:- The applicant was arrested by the respondent-SFIO on 1st April 2019, for the alleged offence punishable under Section 447 of the Companies Act, 2013 vis-a-vis IL&FS Financial Services Limited ('the IFIN'). The applicant, after his arrest, was remanded to custody under File No. SFIO/INV/Unit-V/1003/IL&FS/2018-2019. On 28th May 2019, the respondent-SFIO submitted a report to the Ministry of Corporate Affairs ('MCA') against IFIN's Directors (including the applicant) and auditors, running into more than 32000 pages. On 29th May 2019, MCA issued a sanction letter under Section 212(14) of the Companies Act, directing the respondent-SFIO to file its complaint before the Special Court against the applicant and others, by 30th May 2019. Pursuant to the said direction issued by the MCA, the respondent-SFIO filed a criminal complaint, being Criminal Complaint No.20/2019 before the Special Court on 30th May 2019. Being aggrieved by the direction issued by the MCA to file a criminal complaint against the applicant and others, the applicant filed a writ petition in this Court, being Writ Petition No.5263/2019 seeking quashing of the said direction, the complaint and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted the applicant to withdraw the SLP and granted liberty to the applicant to pursue appropriate remedies as available in law. Pursuant to the liberty granted by the Apex Court, the applicant has filed the aforesaid application, seeking his release on the premise that his detention, post filing of charge-sheet was illegal, as no cognizance of the complaint has been taken by the learned Special Judge. 3. Mr. Ponda, learned senior counsel for the applicant submitted that the power under Section 167(2) of the Cr.P.C to remand the accused, is only upto 60 days (as applicable to this case) and not beyond. He submitted that once the complaint (or charge-sheet, as applicable to this case) is filed, the power to remand under Section 167(2) comes to an end. He submitted that the applicant was first remanded to custody on 1st April 2019 and the complaint was filed by the respondent-SFIO on 30th May 2019 and therefore, the power to remand the applicant under Section 167(2) of the Cr.P.C had come to an end. According to the learned senior counsel, remand under Section 309 of the Cr.P.C is possible only after the Court takes cognizance of the complaint and since admittedly, cognizance has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording to the learned senior counsel, the trial Court has no inherent power of remanding an accused to custody, except as contemplated by law, by an express provision in the Statute. In this regard, learned senior counsel relied on the judgment of Natabar Parida vs. State of Orissa (1975) 2 SCC 220, Union of India vs. Thamisharasi (1995) 4 SCC 190 and A. S. Gauraya vs. S. N. Thakur (1986) 2 SCC 709, to show that the trial Court has no inherent powers and that their powers have to be strictly traced to some express provision in the Statute. Learned senior counsel also relied on the Law Commission reports to show that soon after charge-sheet is filed, it is obligatory on the Court to take cognizance of the offence and that no such gap is contemplated in law. Thus, in conclusion, Mr. Ponda submitted that the power of remand under Section 309(2), being only post cognizance and cognizance not having been taken, the remand orders are illegal and contrary to law and as such, cannot be sustained. 6. Mr. Venegavkar, learned counsel for the respondent-SFIO submitted that the issues raised in the present application have already been considered and decided by this Court (Coram : C. V. Bhada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant, the judgment in Rahul Modi's case (Supra) was clearly distinguishable and would not apply to the facts in hand. 9. Both sides have relied on several judgments in support of their respective submissions. 10. The short question that arises for consideration in the aforesaid application is, whether the detention/custody of the applicant i.e. remand orders are illegal, since the Special Court has not taken cognizance of the complaint filed by the SFIO, even after filing of the complaint. 11. The ground or premise on which the applicant seeks his release is that his detention, post filing of complaint, is illegal, as no cognizance of the complaint filed by the SFIO has been taken by the learned Special Judge, till date. It is submitted that all the remand orders post the complaint are illegal, inasmuch as, there is no provision in law, post 167 of the Cr.P.C for continuing the remand of an accused in the absence of the Court taking cognizance of the complaint. According to the learned senior counsel, remand under Section 309 of the Cr.P.C is possible only post cognizance and hence, the custody/detention of the applicant being illegal, the applicant be released forthwith. 12. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2.- The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused." 13. Section 167 of Cr.P.C spells out the powers of a Magistrate to authorise detention of an accused in custody. Filing of a charge-sheet, by itself, does not, in any way, affect/impinge the right, that an accused otherwise has, under proviso (a) of Section 167(2) of Cr.P.C. Under Section 190 of Cr.P.C, the Magistrate is empowered to take cognizance of offence or offences reported by the police in the final report filed under Section 173 of the Cr.P.C, after investigation. Therefore, at the stage of filing of charge-sheet, all that the Magistrate has to do, is to apply his mind to the facts narrated in the report and the material found in the documents and come to a conclusion, whether, the material before him would be prima facie sufficient, to take cognizance. It may not be even incumbent upon the Magistrate to record reasons, whilst taking cognizance. The po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vest him with a power of remand under sub-section (2) of Section 309 of the Cr.P.C. 18. In this context, it would be apposite to refer to the decision of the Apex Court in the case of Suresh Kumar (supra). In the said case, the powers of the Magistrate to remand an accused to judicial custody under Section 167(2) was considered. In Suresh Kumar (supra), despite the charge-sheet having been submitted and the Magistrate not having taken cognizance of the same, yet, the accused was remanded to custody, post filing of charge-sheet. The arguments of the petitioner in Suresh Kumar (supra) was, that on filing of charge-sheet, the Magistrate could not have remanded the accused to custody, without taking cognizance and as the Magistrate was awaiting sanction to be accorded, the accused therein was entitled, as a matter of right, to be released on bail. The question that arose in Suresh Kumar (supra) was whether the remand of accused on submission of charge-sheet, without taking cognizance, was sustainable in law. The Apex Court in para 18 of Suresh Kumar (supra) has observed as under : "18. ...... The scheme of the CrPC is such that once the investigation stage is completed, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegation of misappropriation of amounts meant for development of slums in Jalgaon City. The petitioner therein was accused of committing offences punishable under Sections 120-B, 409, 411, 406, 408, 465, 466, 468, 471, 177 and 109 read with Section 34, IPC and also under Sections 13(1) (c), 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. The contention of the petitioner therein was that he could not have been remanded to custody in view of cognizance not being taken for want of sanction within the statutory period of 90 days. The scheme of the provisions relating to remand of an accused first during the stage of investigation and thereafter, after cognizance is taken, indicates that the legislature intended investigation of certain crimes to be completed within the period prescribed therein, according to this Court in Bhikamchand Jain (supra). This Court held that in the event of investigation not being completed by the investigating authorities within the prescribed period, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. This Court was of the firm opinion that if on either the 61st day or the 91st day, an accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain (supra)." (Emphasis supplied) 22. Considering the aforesaid legal pronouncements and what is stated hereinabove, the submissions advanced by the learned senior counsel for the applicant, being devoid of merit, would have to be rejected. 23. What was disturbing to note during the course of arguments, was that though the complaint in the said case was filed on 30th May 2019, however till date, cognizance of the complaint has not been taken by the learned Special Judge. On 14th January, 2022, during the course of arguments, when Mr. Venegavkar, learned counsel for the respondent No.1 was asked why cognizance of the criminal complaint bearing No. 20/2019 was not taken till date by the learned Special Court, Greater Bombay, learned counsel sought time to take instructions and place on record the reasons for the same. Accordingly, Mr. Venegavkar had tendered a compilation of documents and a note setting out the reasons for delay by the learned Special Judge in taking cognizance. The said compilation is taken on record vide order dated 18th January 2022. 24. From the said note, it transpires that after completing investigation into the affairs of IFIN, criminal complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court." The matter was thereafter listed on 31st October 2020, 27th November 2020 and 14th December 2020, however, the same could not be heard on the said dates, as the learned Judge was on leave. Thereafter, Shri S. N. Yadav was transferred and another Presiding Officer Shri R. V. Kokare had taken the charge. On 7th January 2021, reply to the application filed by proposed accused No. 13 was filed by the complainant and the matter was adjourned for arguments on the said application on 8th February 2021. Thereafter, the matter was listed on 8th February 2021 and 9th February 2021 for arguments, however, the arguments could not be advanced, as the learned senior counsel appearing for proposed accused No. 13 sought permission to argue the matter through video-conferencing. On 30th April 2021 and 6th May 2021, the matter could not be heard in view of the SOP issued by the High Court due to prevalent conditions of COVID-19. In the interregnum, the Presiding Officer Shri R. V. Kokare was transferred and Shri R. M. Sadrani, learned Judge took charge as the Presiding Officer of the said Court. It appears that the matter was listed on 6th July, 30th July, 6th August, 2nd September, 28 ..... 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