2023 (12) TMI 913 - HC - Money Laundering

Detention remains lawful when production warrant issued same day as remand expiry under Section 167(2) CrPC

Nitin Garg, Guangwen Kuang Alias Andrew and Pranay Rai Versus Union Of India & Anr., Directorate of Enforcement Department of Revenue & Ors.

Delhi HC dismissed habeas corpus petition challenging detention in Tihar Jail. Petitioners claimed illegal custody after 07.12.2023 when remand under ... Illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody - seeking 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 - HELD THAT:- Pertinently, a writ of habeas corpus is an extraordinary remedy, when there is illegal confinement violating the personal liberty of a person. Ordinarily, an order of remand by a competent court is essentially a judicial function and cannot be challenged by way of writ of habeas corpus unless and until the remand order lacks jurisdiction or is absolutely illegal resulting in unlawful “custody”. It is true that an order of remand can be challenged in a Habeas Corpus petition if such an order is passed in an absolutely mechanical or casual manner. The contention 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. The power of remand is vested in the Court, firstly, at the stage of investigation, when the arrested person can be remanded initially either to police custody or judicial custody. Whereas, custody remand under Section 309 Cr.P.C operates only at post cognizance stage after conclusion of investigation when chargesheet is laid before the Court. In the present petitions, in fact, initially after 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. Nature of “custody” of the petitioners, whether legal or illegal - HELD THAT:- Two situations have emerged when the chargesheet/prosecution complaint is filed in the Court. One is, when remand under Section 167(2) Cr.P.C has not expired and in the meanwhile chargesheet/prosecution complaint is filed by the investigating agency and the competent court takes cognizance under Section 309 Cr.P.C on the said chargesheet/prosecution complaint. On the date of taking cognizance, the accused is not produced before the Court and is not remanded to the judicial custody under Section 309 Cr.P.C. However, the Court issues production warrant against the accused for production 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 (6) TMI 576 - DELHI HIGH COURT]- 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. The second situation is, when the chargesheet/prosecution complaint is filed before the competent court and cognizance is not taken by the Court under Section 309 Cr.P.C. However, the remand of said accused continues under the orders of the Magistrate. The Hon’ble Supreme Court, in the case of Suresh Kumar Bhikamchand Jain [2013 (2) TMI 821 - SUPREME COURT] has observed that such remand granted by the Magistrate was valid and the accused remained in the custody of the Magistrate till cognizance is taken by the concerned court. It is also held that in such a situation the accused has to remain in custody for “some court”. Assuming a competent court has taken cognizance of chargesheet/prosecution complaint and posts the case at a particular stage of proceedings/trial, however, on the said date of hearing, the accused in that case is not produced from judicial custody, due to some unavoidable reason. In such a situation, the court issues production warrant against the said accused and the case is posted for the next date of hearing. Can it be said, during the period, when the accused was produced on the last date of hearing and is to be produced before the court on the next date of hearing in execution of production warrants, his judicial custody is illegal - the answer is in negative, as in such a situation, the custody of accused is continuum and there is no “break” in the custody of such an accused. The position, however, will be different when, the accused is not produced before such a Court on the date of hearing and no production warrant is issued for the said accused on the same date of hearing but is issued subsequently. In such a situation, the custody of the accused will not be in continuum and for the break period, it may be illegal. The submissions made on behalf of the petitioners that the petitioners are suffering illegal custody since 07.12.2023, cannot be sustained - the learned ASJ-04 has rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of learned ASJ-04 - petition dismissed. Issues Involved:1. Illegal detention of the petitioners in Tihar Jail without a judicial order remanding them to judicial custody.2. Violation of fundamental rights under Articles 14, 21, and 22 of the Constitution of India.3. Validity of judicial custody and remand orders under Sections 167 and 309 of the Code of Criminal Procedure (Cr.P.C).Summary of Judgment:Issue 1: Illegal Detention Without Judicial OrderThe petitioners contended that their detention in Tihar Jail was illegal due to the absence of a judicial order remanding them to judicial custody as mandated under Section 167 Cr.P.C. They argued that no order was passed by the learned ASJ-04 on 07.12.2023, remanding them to further judicial custody, resulting in their illegal detention.Issue 2: Violation of Fundamental RightsThe petitioners claimed that their continued detention violated their fundamental rights under Articles 14, 21, and 22 of the Constitution of India. They sought issuance of a writ of habeas corpus for their immediate release from illegal detention.Issue 3: Validity of Judicial Custody and Remand OrdersThe court analyzed the power of the Judicial Officer to pass remand orders under Sections 167 and 309 Cr.P.C. It was noted that the petitioners were initially remanded to judicial custody under Section 167(2) Cr.P.C. The prosecution complaint was filed on 06.12.2023, but the learned ASJ-04 did not take cognizance on 07.12.2023 and issued production warrants for 13.12.2023.The court referred to the judgments in Suresh Kumar Bhikamchand Jain v. State of Maharashtra and Serious Fraud Investigation Office v. Rahul Modi, which clarified that the accused remains in the custody of the Magistrate until cognizance is taken by the relevant court. The court concluded that the custody of the petitioners remained lawful as they were in the 'custody of the court' and the issuance of production warrants was sufficient to validate their custody.Conclusion:The court dismissed the writ petitions, holding that the petitioners' custody was lawful and not illegal. The learned ASJ-04 had rightly issued production warrants, and there was no 'break' in the custody of the petitioners. The submissions made on behalf of the petitioners were found to be without merit, and the petitions were dismissed along with any pending applications.