2023 (3) TMI 69 - HC - Money Laundering

Court dismisses petition for Habeas Corpus due to rectified remand order, emphasizing custody continuity.

Surender Kumar Bansal Versus Directorate Of Enforcement & Anr.

The court dismissed the petition for a writ of Habeas Corpus as the subsequent remand order on 14th February 2023 rectified the initial absence of a ... Seeking a writ of Habeas Corpus (to present/produce the person before the court) to forthwith release the petitioner from illegal custody - only ground urged for seeking a writ of habeas corpus is that the learned Special Judge granted remand of more than 15 days in one go and not there was no valid remand order - HELD THAT:- The issue whether an order of remand is required to be passed under Section 167 CrPC even if the accused is not entitled to default bail, when no cognizance is taken despite filing of chargesheet has been considered in SSURESH KUMAR BHIKAMCHAND JAIN VERSUS STATE OF MAHARASHTRA & ANR. [2013 (2) TMI 821 - SUPREME COURT]. Hon’ble Supreme Court noted that from the provisions of Section 167 CrPC, it would be amply clear that the Magistrate may authorize 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 there are adequate grounds for doing so, but no Magistrate is authorized to detain the accused person in custody for a total period exceeding 90 days. The power of remand is vested in the Court at the very initial stage before taking cognizance under Section 167(2) Cr.P.C and once cognizance is taken, power to remand shifts to the provisions of Section 309 Cr.P.C. It was thus categorically held that in case, on the filing of the charge sheet, cognizance is not taken, the Magistrate may postpone the commencement of, or adjourn, any inquiry or trial, for reasons to be recorded and may by a warrant, remand the accused if in custody for a period of 15 days at a time. Thus, in cases, where though charge sheet is filed, however, sanction is not received, the accused will have no right to bail, however, his remand under Section 167 CrPC will be required to be continued if necessary. In the decisions reported as NATABAR PARIDA VERSUS STATE OF ORISSA [1975 (4) TMI 132 - SUPREME COURT], it was held that before the Court proceeds to the next stage of Section 309 CrPC, the accused has to be remanded in custody of some Court. The two stages i.e. one under Section 167 CrPC and the other under Section 309 CrPC though different but one follows the other so as to maintain a continuity of the custody of the accused with the Court. Thus, it is clear that on 13th January 2023 or even on the adjourned date i.e. 24th January 2023 after the complaint was filed on 13th January 2023, no order of judicial remand was passed against the petitioner. Though learned counsel for the petitioner has seriously challenged that the learned Special Judge could not have taken up the file suo-moto on the request of the Reader on 13th February 2023. Be that as it may, passing of a remand order is a judicial act and realizing the error committed, the learned Special Judge corrected the mistake and vide order dated 14th February 2023, directed the Rehnumai remand of the petitioner. Thus, even if on the date of filing of the petition, the custody of the petitioner was illegal in the absence of an order of remand, however, before the date of return which was 20th February 2023, when the matter was to be heard, the said defect had been rectified and the custody of the petitioner was no more illegal. There is no dispute to the proposition raised by the learned counsel for the petitioner that an order of remand is a judicial remand and the same cannot be passed on chits of paper. However, in the present case, the learned Special Judge took up the file, issued notice to the parties and thereafter, directed the Rehnumai remand. There are no ground to issue a writ of Habeas Corpus releasing the petitioner from the custody - petition dismissed. Issues Involved:1. Legality of the petitioner's custody.2. Validity of the remand orders under Section 167 CrPC.3. Entitlement to a writ of Habeas Corpus.Detailed Analysis:1. Legality of the petitioner's custody:The petitioner sought a writ of Habeas Corpus for release from alleged illegal custody. The petitioner was arrested on 15th November 2022 and remanded to judicial custody multiple times. A complaint was filed on 13th January 2023, but no cognizance was taken by the Special Court. The petitioner argued that without a specific remand order, his custody was illegal, referencing several Supreme Court decisions emphasizing the necessity of judicial remand orders.2. Validity of the remand orders under Section 167 CrPC:The petitioner argued that since no cognizance was taken on the complaint filed on 13th January 2023, the proceedings remained under Section 167 CrPC, requiring a specific remand order. The Special Court's failure to pass a remand order on 13th January 2023 and 24th January 2023 rendered the petitioner's custody illegal. The court examined relevant orders and found that no remand order was passed on these dates. The Supreme Court's decisions in Suresh Kumar Bhikamchand Jain and Serious Fraud Investigation Office vs. Rahul Modi were cited to support the necessity of remand orders under Section 167 CrPC when no cognizance is taken.3. Entitlement to a writ of Habeas Corpus:The court considered whether the petitioner was entitled to a writ of Habeas Corpus due to the absence of a remand order. The respondent argued that the remand order passed on 14th February 2023 cured any illegality. The court noted that the legality of detention is assessed at the time of the hearing, not the filing of the petition. The court found that the remand order on 14th February 2023 rectified the earlier defect, making the petitioner's custody legal at the time of the hearing. The court referenced the Supreme Court decisions in A.K. Gopalan and Ram Narayan Singh, which emphasize the legality of detention at the time of the hearing.Conclusion:The court concluded that despite the initial absence of a remand order, the subsequent order on 14th February 2023 rendered the petitioner's custody legal. Therefore, the petition for a writ of Habeas Corpus was dismissed. The court emphasized the judicial nature of remand orders and the necessity of maintaining continuity of custody under Section 167 CrPC until cognizance is taken. The petition and related applications were disposed of as infructuous.