2017 (9) TMI 433 - HC - Money Laundering

Judicial Independence in Custody Determination: Limits on Police Custody

The court held that the Special Judge under the Prevention of Money Laundering Act (PMLA) is part of the judicial setup, emphasizing the need for ... Remanding the accused persons beyond period of fifteen days as mandated by Section 167(2) of the Cr.P.C.- offence under PMLA - Procedure when investigation cannot be completed in twenty four hours - Held that:- Admittedly, since both the petitioners were produced before the learned Special Judge under PMLA for first time on 22nd August, 2017, the total period of custody/remand could not have been allowed beyond 5th September, 2017 when they would be completing fifteen days in custody. Learned ASJ could not have given the police/ED remand for more than fifteen days after the petitioners were produced on 22nd August, 2017. Therefore, the impugned order of the learned Special Judge dated 28th August, 2017, being per se illegal, perverse and whimsical, is set aside to the extent of remanding the accused persons beyond period of fifteen days as mandated by Section 167(2) of the Cr.P.C. 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 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. Issues Involved:1. Jurisdiction and authority of the Special Judge under the Prevention of Money Laundering Act (PMLA) regarding custody orders.2. Interpretation of Section 167(2) of the Code of Criminal Procedure (Cr.P.C.) concerning the maximum period of police custody.3. Legality of the remand order dated 28th August 2017 extending custody beyond the permissible period.Issue-wise Detailed Analysis:1. Jurisdiction and Authority of the Special Judge under PMLA:The judgment underscores that the Special Judge under PMLA is part of the judicial setup and not a wing of the police. The Special Judge must act independently to determine the nature of custody, ensuring it is the 'right custody' with the ultimate aim of securing justice. The Special Judge can change the nature of custody from time to time but cannot order police custody beyond fifteen days.2. Interpretation of Section 167(2) of Cr.P.C.:Section 167(2) of Cr.P.C. permits a Magistrate/Special Judge to authorize detention of the accused in either police or judicial custody for a total period not exceeding fifteen days. Within this period, the nature of custody can be altered multiple times. This interpretation is supported by precedents from the Division Bench of the Delhi High Court in State (Delhi Admn.) v. Dharam Pal and the Supreme Court in Central Bureau of Investigation, Special Investigation Cell-I, New Delhi, v. Anupam J. Kulkarni. The primary objective of Section 167 is to facilitate investigation, not to allow detention without trial.3. Legality of the Remand Order Dated 28th August 2017:The petitioners challenged the remand order dated 28th August 2017, which extended their ED/police custody for ten days, arguing it exceeded the permissible fifteen-day period. The court noted that the petitioners were initially produced before the Special Judge on 22nd August 2017 and remanded to ED custody for three days. They were subsequently remanded to judicial custody for three days on 25th August 2017. The impugned order on 28th August 2017 extended their custody beyond the fifteen-day limit, which was illegal.The court emphasized that the total period of custody/remand could not exceed fifteen days from the first production date before the Special Judge, i.e., from 22nd August 2017 to 5th September 2017. Consequently, the order dated 28th August 2017 was set aside as it was 'per se illegal, perverse and whimsical.'The court reiterated that judicial officers must be meticulous and cautious while dealing with remand requests, ensuring compliance with Section 167(2) Cr.P.C. The court also highlighted the role of the Public Prosecutor in assisting the court properly and ensuring no violation of Section 167(2) Cr.P.C. occurs.Conclusion:The judgment concluded that the impugned order extending custody beyond fifteen days was illegal. The court directed that a copy of the order be circulated to all judicial officers for guidance and requested District & Sessions Judges to sensitize judicial officers under their jurisdiction.