9911796707
TMI Blog2023 (12) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... . Zoheb Hossain, Special Counsel with Mr. Simon Benjamin, SPP, Mr. Manish Jain, SPP, Mr. Vivek Gurnani, Mr. Kartik Sabharwal and Mr. Baibhav, Advocates for ED Mr. Zoheb Hossain, Special Counsel with Mr. Vivek Gurnani, Mr. Manish Jain, Mr. Simon Benzamin, Mr. Sougata Ganguly, Mr. Amit Jain, Mr. Ishaan Baisla, Mr. Kartik Sabharwal, Mr. Baibhav and Mr. Vinod Tiwari, Advs. for R-1. AND JUDGMENT SHALINDER KAUR, J. 1. The three habeas corpus petitions i.e., W.P.(CRL) 3641/2023, W.P.(CRL) 3657/2023 and W.P.(CRL) 3662/2023 are being taken up to be disposed of together vide this common judgment as they pertain to the same Enforcement Case Information Report bearing No. ECIR/STF/02/2022 [hereinafter referred to as "ECIR"] and involve the same question with respect to the illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody. The petitioners pray for issuance of writ of habeas corpus or any other appropriate direction to the respondents, inasmuch as the fundamental rights of the petitioners as guaranteed under Articles 14, 21 and 22 of the Constitution of India have been violated by the respondents. Their continued illegal detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2023, ED filed an application before the learned ASJ05 seeking remand of the petitioners to judicial custody which was granted for a period up to 30.10.2023. Lastly on 23.11.2023, on a fresh application filed by ED for remand of the petitioners to judicial custody for period of fourteen days and the same was granted by remanding the petitioners to judicial custody till 07.12.2023. 5. It is submitted that since the statutory period of sixty days as provided for completion of investigation under Section 167 Cr.P.C was set to expire on 08.12.2023, however, ED on 06.12.2023 filed a prosecution complaint bearing case number 102/2023, titled 'Enforcement Directorate v. M/s Vivo Mobile Communication Co. Ltd. (PC) in the ECIR, under Section 44 read with Section 45 of PMLA, arraying the petitioners and the fourth co-accused namely Rajan Malik as accused persons. On 07.12.2023, the SPPs informed to learned ASJ-05, that the prosecution complaint was filed by ED which came up for hearing in the Court of learned Additional Sessions Judge, Special Fast Track Court (ASJ-SFTC) on 06.12.2023 itself and the learned ASJ-SFTC did not take cognizance of the prosecution complaint. 6. Mr. Sidhart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint/charge sheet by ED. However, on 07.12.2023, the learned ASJ04 did not take cognizance on the aforesaid prosecution complaint and could not remand the petitioners to judicial custody under Section 309 Cr.P.C, therefore, the stage as contemplated under Section 309 Cr.P.C did not start. In cases, where though chargesheet is filed, however, cognizance is not taken for any reason by the Court, the accused will have no right to bail as per the provision under Section 167(2)(b) Cr.P.C, thus his remand under Section 167 Cr.P.C will be required to be continued. Reliance was placed on the judgment Suresh Kumar Bhikamchand Jain v. State of Maharashtra [(2013) 3 SCC 77] and Serious Fraud Investigation Office v. Rahul Modi [2022 SCC OnLine SC 153]. It was submitted that hence, apart from extending remand for judicial custody under Section 167(2) Cr.P.C or Section 309 Cr.P.C, the learned ASJ-04 has no power to remand the petitioners to judicial custody, therefore, the judicial custody of petitioners since 07.12.2023 is not backed by judicial order is patently illegal. 10. While relying on the case of Ram Narayan Singh v. State of Delhi & Ors. [(1953) 1 SCC 389], it was submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 SCC OnLine Del 3633], the Hon'ble Supreme Court has categorically observed that in case of illegal custody, the legal remedy is not bail but a writ petition in the nature of Habeas Corpus or to move an application under Section 482 Cr.P.C. Since in the present case, there is no judicial order, granting extension of judicial custody on 07.12.2023, the detention itself is ex-facie illegal requiring immediate release of the petitioners as deprivation of personal liberty due to illegal custody is a violation of Article 21 of Constitution of India. Reliance in this regard was placed upon the judgment of the Hon'ble Supreme Court in Gautam Navlakha v. National Investigation Agency [(2022) 13 SCC 542]. Reliance was also placed on the judgment of Manubhai Ratilal Patel Tr. Ushaben vs. State of Gujarat and Ors [AIR 2013 SC 313] and submitted that the entire object of proceedings for a writ of habeas corpus is to make the proceedings expeditious and free from technicality since liberty is at stake and requires the immediate determination of the petitioners' right to freedom. It was submitted that aggrieved by the aforesaid, the petitioners are constrained to file the present petitions. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respective counsels at the time of passing of the order of issuance of production warrants against the accused persons for the next date of hearing. None of the counsels took an exception to passing of the said order of production of the petitioners or requested for their bail by learned ASJ-04. To this effect, reliance placed on the judgment of the Hon'ble Supreme Court in the case of Raghunandan Chauhan v. State [1980 SCC OnLine Del 103]. It was submitted an order for production of the accused for a particular date of hearing clearly indicates that till the date accused was to be kept in custody and to be produced in the Court on the date as per production warrant. 17. It was next submitted that although as far as possible an accused should be produced before the Magistrate for remand but it will depend upon facts and circumstances of each case whether physical presence of accused was necessary or not, thus, a fresh order of remand of the accused person by Magistrate in absentia would not render the remand to be illegal. To justify said view, reliance placed on M. Sambasiva Rao v. The Union of India (UOI) and Ors. [MANU/SC/0697/1972], Raj Narain v. Superintendent, Central Jail, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. 22. We are also conscious of the fact that an arrested person can be kept in "custody" only in accordance with law. Article 21 of the Constitution provides "no person shall be deprived of his life or personal liberty except according to procedure established by law". The Hon'ble Supreme Court in the case of Uday Mohanlal Acharya v. State of Maharashtra [2001 SCC (Cri.) 760] considered the concept of personal liberty under Article 21 and observed "....personal liberty is one of the cherished objects of Indian Constitution and deprivation of the same can only in accordance with law and in conformity with the provisions thereof". 23. In light of the above, to appreciate the issue raised in present petitions, concerning with the power of the Judicial Officer to pass order of remand in terms of Section 167 (2) Cr.P.C. and Section 309 Cr.P.C, the aforesaid provisions are relevant for understanding the issue involved in these pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n II.-If any question arises whether an accused person was produced before the Magistrate as required under clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be. Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution. "Section 309 -Power to postpone and adjourn proceedings 1. In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded; Provided that when the inquiry or trial relates to an offence under section 376, section 376A, section 376AB, section 376B, section 376C or section 376D, section 376DA, section 376DB of the Indian Penal Code, the inquiry or trial shall be completed within a period of two months from the date of filing of the charge sheet. 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter 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. 25. Pertinently, it is the order passed on 07.12.2023 by learned ASJ-04 which is in issue, as according to the petitioners, the order cannot be termed to validate the judicial custody of the petitioners as petitioners were not produced before learned ASJ-04 at the time of passing of the order which is contrary to Section 167(2)(b) and the post cognizance stage did not commence as learned ASJ-04 did not take cognizance of the prosecution complaint, therefore, the custody remand of the petitioners was not extended by learned ASJ-04 as per law, thus, resulting in illegal custody of the petitioners since thereafter. To appreciate the submissions, it would be relevant to reproduce the order dated 07.12.2023 passed by learned ASJ-04, which is herein below:- "07.12.2023 Present complaint received by way of transfer. It be checked and registered. Present: Sh. Simon Benjamin and Sh. Manish Jain, ld. Special PP for Enforcement Directorate. Sh. Vikram Chaudhari, Sr. Advocate (through VC) alongwith S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was regarding the power of Magistrate to pass orders of remand even beyond the period envisaged under Section 167(2) Cr.P.C. In the said case, despite chargesheet having been filed, no cognizance was taken on the basis thereof by the Special Court on account of failure of the prosecution to obtain 'sanction' to produce the accused under the provisions of the Prevention of Corruption Act, 1988. The learned Magistrate, however, continued to pass remand orders without apparently having proceeded to the stage contemplated under Section 309 Cr.P.C. The Hon'ble Supreme Court observed as under:- "18. None of the said cases detract from the position that once a chargesheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2)(a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Cr.P.C. is concerned. The right which may have accrued to the Petitioner, had charge-sheet not been filed, is not attracted to the facts of this case. Merely because sanction had not been ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction on the next date of hearing. The validity of such remand under Section 167 Cr.P.C was challenged before this Court in case of Sunil Kumar Sharma vs. State of NCT of Delhi ILR [(2005) II DELHI 153]. 30. In the said case, during the period of a valid order under Section 167 Cr.P.C, accused was placed under judicial custody, his remand was to continue till 26.04.2005, however, the chargesheet was filed on 25.04.2005 and the Magistrate took cognizance on the chargesheet on the same day as the accused was in judicial custody till 26.04.2005. Production warrants were issued against him for the same date. The objection raised on behalf of the accused contemplating illegal custody on 25.04.2005 was that no valid order for remand was passed under Section 167(2) Cr.P.C or under Section 309(2) Cr.P.C on 25.04.2005 or on 26.04.2005. It was contended that the order of remand passed on 20.04.2005 was one which was passed during the pendency of investigation and accordingly it automatically extinguished upon the Magistrate taking cognizance of the offence on 25.04.2005 under Section 309 Cr.P.C. It was held:- "where filing of the charge-sheet is immediately followed by the Magistrate tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 309 Cr.P.C. In the present case, the court of learned ASJ-04 is one such court. 33. Mr. Hossain had contended that the investigation with respect to ECIR had concluded, therefore, the prosecution complaint was filed in the court on 06.12.2023. The order of issuance of production warrants of the petitioners by the learned ASJ-04 on 07.12.2023 is sufficient and as the petitioners were not produced before the Court, it validates the extended custody of the petitioners from 07.12.2023 to 13.12.2023. 34. In the present writ petitions, no cognizance was taken on 07.12.2023 as required under Section 309 Cr.P.C as ED had submitted before the learned ASJ-04 that the documents in the case were voluminous, kept in 16 trunks. The documents had to be scrutinised by the Ahlmad of the court and the learned ASJ-04 directed ED to hand over the documents to the Ahlmad for scrutiny on 09.12.2023 and adjourned the case for consideration on the aspect of cognizance on 13.12.2023 at 2 pm. The judicial custody of the petitioners was expiring on 07.12.2023, however, the peculiar and distinct facts and circumstances as emerging from present writs are that the petitioners were not produced bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
