AI Drafter 
TaxTMI 
TaxTMI 
2018 (12) TMI 1549
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....ect to all just exceptions. The applications are disposed of accordingly. W.P.(CRL.) 3842/2018 & W.P.(CRL.) 3843/2018 1. The present writ petitions under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure, 1973 instituted on behalf of the petitioners pray as follows:- A. Issue a writ of mandamus or any other appropriate writ/direction/order in the nature of a writ declaring that the power of Respondent Nos.2 to 4 to carry out investigation under Section 212(3) Companies Act, 2013 after the expiry of the time period is illegal and unconstitutional. B. Issue a writ of mandamus or any other appropriate writ/direction/order in the nature of a writ declaring that the investigation carried out after 19.09.2018 in File No.SFIO/INV/AOI/2018-19-AGC&L/842-966 Vide Order No.07/115/2018-CL-II dated 20.06.2018 as illegal and without jurisdiction. C. Issue a writ/direction/order declaring the arrest of the petitioner dated 10.12.2018 at New Delhi in the office of respondent No.2 by respondent No.3, and proceedings emanating therefrom being without jurisdiction and illegal and the petitioners be released forthwith. D. Iss....
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.... behalf within a period of three months therefrom, in the public interest. 4. A further declaration is also sought to the effect that, the investigation carried out by the SFIO beyond three months period, specified in the said order dated 20.06.2018, and the arrest of the applicants on 10.12.2018, pursuant thereto, is illegal and without jurisdiction. 5. It is an admitted position that, pursuant to the said order dated 20.06.2018, the SFIO was unable to complete its investigation into the affairs of the subject entities, within the period of three months stipulated therein. It is further an admitted position that, an extension of time to carry out and conclude investigation, in relation to the subject entities, was made by the SFIO to the Competent Authority only on 13.12.2018, almost two and half months after the initial period of three months granted in this regard had already elapsed. 6. It is further observed from a perusal of the original file that, extension of time upto 30.06.2019, to carry out investigation has been subsequently granted to the SFIO by the Competent Authority, vide its order dated 14.12.2018. 7. In the aforestated backdrop, what arises for consid....
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....sanct. 11. It is further urged on behalf of the applicants that on 11.12.2018, when they were produced before the Duty Magistrate, JMIC, Gurugram by the SFIO seeking police remand, at that point of time the applicants raised objections qua the territorial jurisdiction of the said Magistrate, however, the said objections were not dealt with by the concerned Magistrate. 12. Lastly, our attention has been invited to the norms formulated by the SFIO itself for the discharge of its functions, to urge that, they are required thereby to complete the investigation, within the time frame specified by the Competent Authority. 13. Per contra, Ms. Maninder Acharya, learned Additional Solicitor General appearing on behalf of the official respondents would urge that, neither does this Court have territorial jurisdiction over the valid remand orders rendered by the concerned Magistrate in Gurugram, nor can this Court grant interim protection/release on bail to the applicants in the present applications. 14. In order to buttress the above submissions, our attention has been invited to the following decisions:- (i) State of Maharashtra and Others vs. Tasneem Rizwan Siddiquee, reporte....
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....tion may be inquired into, or to put it differently, "in order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restraint". The form of the writ employed is "We command you that you have in the King's Bench Division of our High Court of Justice - immediately after the receipt of this our writ, the body of A.B. being taken and detained under your custody - together with the day and cause of his being taken and detained - to undergo and receive all and singular such matters and things as our court shall then and there consider of concerning him in this behalf". The italicized words show that the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes "the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom" and his release, if the dete....
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....e hundred years ago on account of certain historical circumstances which have ceased to be valid even in that country and which have certainly no relevance in ours? But we may point out that even in England it is no longer regarded as necessary to order production of the body of the person alleged to be wrongfully detained, in an application for a writ of habeas corpus." 18. A Three Judge Bench of the Hon'ble Supreme Court in the matter of Madhu Limaye and Others, reported as 1969 (1) SCC 292 whilst affirming the dictum of their Lordships in Ram Narayan Singh vs. State of Delhi & Ors, reported as AIR (1953) SC 277, observed that "those who feel called upon to deprive other persons of liberty in the discharge of what they conceive to be their duty must, strictly and scrupulously, observe the forms and rules of law." It further went on to reaffirm the ratio in Ram Narayan Singh (supra) to the effect that "the Court must have regard to the legality or otherwise of the detention at the time of the return." 19. In Tasneem Rizwan Siddiquee (supra), which is heavily relied upon on behalf of the official respondents, a Three Judge Bench of the Hon'ble Supreme Court of India observed ....
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....tention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. 25. It is apt to note that in Madhu Limaye, In re [(1969) 1 SCC 292 : AIR 1969 SC 1014] it has been stated that: (SCC p. 299, para 12) "12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish t....
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..... It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law." 21. In Neeraj Singal (supra), which has also been strongly relied upon on behalf of the official respondents, the Hon'ble Supreme Court has observed as follows:- "6. Although the challenge to the constitutional validity of the provisions of the Companies Act, 2013 was limited to Sections referred to in prayer clauses (A) and (B), for the grant of interim relief, the High Court has considered diverse aspects which would create impediment for the Competent Authority under the Act, if not debar them from investigating into offences punishable under the Companies Act, 2013 (for short 'the Act'), including to file a complaint and/or police report. 7. Indisputably, respondent No.1/Neeraj Singal was sent to judicial custody in connection with the alleged offences un....
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....s order dated 20.06.2018 directed the SFIO to conduct an investigation into the affairs of the subject entities, in public interest. There is also no quarrel with the circumstance that, the period specified by the Competent Authority in the said order dated 20.06.2018 lapsed on 19.09.2018. There is also no dispute with regard to the fact that, the SFIO sought an extension of time, from the Competent Authority, to carry out further investigation under the mandate of the provisions of Section 212 of the said Act, only on 13.12.2018, admittedly two and half months after the period granted to them by the Competent Authority for the said purpose, had come to an end by efflux of time. 24. There is also no quarrel with the circumstance that, the ex post facto extension granted by the Competent Authority, retrospectively, was granted only on 14.12.2018. It is, therefore, prima facie axiomatic that, when the applicants were arrested by the SFIO on 10.12.2018, the period specified in the said order dated 20.06.2018 for the submission of the report, post investigation, had already elapsed. It is further relevant to state that, at that juncture the SFIO had neither applied nor obtained the ....
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....ing investigated, in terms of a valid sanction, in accordance with law, against the detenue. Further, from a perusal of the observations made by the Hon'ble Supreme Court in Neeraj Singal (supra), it is evident that, prima facie the reasons for grant of interim relief to those applicants, in the order of the High Court under challenge, were for reasons of constitutional validity of the provisions; which course of action, in the view of the Hon'ble Supreme Court, ought not to have been considered with the High Court for grant of interim relief. The Hon'ble Supreme Court had further observed that, before granting interim relief to the petitioner in those proceedings, the High Court ought to have applied the broad contours, required to be kept in mind for grant of bail under Section 439 of the Code of Criminal Procedure, 1973, which aspect, it was found has not been adverted to at all in the order of the High Court. 32. In the present case, it is an admitted position that subsequent upon the rendering of the said order dated 20.06.2018 by the Competent Authority, the applicants joined investigation and have appeared before the officer concerned on numerous occasions, in response to....