TaxTMI 
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2018 (6) TMI 1685
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....titioner. He not only relied on the annexures to the Petition, but sought to meet the contents in the affidavit-in-reply by presenting a rejoinder affidavit and in that rejoinder affidavit, the Petitioner's Counsel was fair enough to annexe a copy of what is popularly known as a challan/charge-sheet but identified with legal terminology employed in Section 173 of the Code of Criminal Procedure. Thus, a report of the investigation was laid in the Court and the only argument therefore which was remaining for consideration and duly canvassed by Mr. Pawaskar was that this was not done within the prescribed time limit. Hence, the order remanding the Petitioner - accused thereafter results in the Petitioner's illegal and unconstitutional detention enabling this Court to issue Writ of Habeas Corpus. 4. For appreciating the arguments of both sides, we would have to know a few facts. Prior to that we proceed to grant Rule. The Respondents waive service. By consent of both sides and since extensive arguments were heard, we pass final orders in this Petition. 5. It is undisputed that the Petitioner is named as Accused No.1 in FIR No. RC0682017E0014 dated 31.08.2017, registered by ....
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....9th January, till 19th January, 2018 there has been no valid order of remand and Accused is languishing behind bar. The Accused was never communicated about addition of Charge under Prevention of Corruption Act, transfer of matter from Court of Ld. Magistrate to the Court of Ld. Special Judge and development regarding filing of Charge-sheet." 8. It is stated that the Petitioner's application for bail was rejected on 22 January 2018 by the Special Judge. 9. The Petitioner says that the order dated 5 January 2018 remanding the Petitioner to Judicial Custody till 19 January 2018 not only violates the mandate of Section 167(2) of Code of Criminal Procedure, but Article 21 and 22 of the Constitution of India. Thus, this is a period beyond the statutory limit and during which the Petitioner remained in custody. This period, therefore, is a period of unlawful detention. In such circumstances, a Writ of Habeas Corpus can be issued by this Court. 10. Mr. Nilesh Pawaskar, learned Counsel appearing for the Petitioner contended before us that the Code of Criminal Procedure mandates that the Petitioner should be produced before the Competent Court and what Mr. Pawaskar relies upon is ....
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....y refers to the order passed by this Court in this Petition on 3rd May 2018, pursuant to which the affidavit-in-rejoinder was filed and taken on record. He would submit that the Respondents filed an affidavit-in-reply purporting to justify a tendering of the charge-sheet in the registry of the Sessions Court and claimed that it is duly filed. However, that was not filed in the ordinary and regular course of business of the Court. Just dropping some packet or set of documents in the registry of Trial Court would not suffice. That would not be compliance with the requirement of filing a report on completion of investigation envisaged by Section 173 of the Code of Criminal Procedure. 13. It is stated that in the affidavit-in-reply the first Respondent has stated that a challan was filed in prescribed format alongwith the other papers, which include statements of the witnesses, panchnama, documentary evidence, office order, on 9th January 2018 but they were given in the Court. The statements made in this affidavit are false. It is clear that the photocopy of the documents were filed and inspection taken on record of the Trial Court revealed that there are several objections which hav....
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.... has to be complete or if a charge-sheet is filed unaccompanied by a material papers, then, it is incomplete and filing of the same cannot be said to be compliance with the law. 17. These observations have been made by the learned Single Judge in the context of deciding two bail applications. In that case the bail was sought on the ground that the proviso to Section 167(2) of the Code of Criminal Procedure is violated. The Petitioners before the learned Single Judge of the Andhra Pradesh High Court argued that from the date of their remand, more than 90 days expired and as such their detention became illegal and as they are ready to furnish surety, the Court of Magistrate was bound to release them on bail. The Additional Public Prosecutor appearing for the State on the other hand argued that the charge-sheet was submitted within the stipulated time of 90 days and as there was some deficiency, the same was returned by the Court after perusal of the charge-sheet and that as such, the requirement of Section 167(2) of the Code of Criminal Procedure was met perfectly and there is no ground for enlargement of the Petitioners on bail. 18. It is this aspect of the matter which has been....
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....olice machinery has failed to abide by the requirement set out in Section 167(2) and particularly, the proviso thereof. We are considering a case where the Petitioner says that he is an accused. He has been booked by the first Respondent. He was put under arrest. He was produced within the time stipulated by Article 22 of the Constitution of India before a Court and the Magistrate remanded him from time to time. During the course of investigations and post arrest the prosecution invoked and applied the provisions of the Prevention of Corruption Act, 1988 and hence the case was made over to the Special Judge according to the prosecution. Thereupon, the Petitioner was produced before the Court of Special Judge trying the Prevention of Corruption Act cases and he passed an order of remand. That order of remand allegedly extends the Petitioner's custody beyond 90 days and the learned Judge failed to apply his mind on an important facet of the matter and that is that the charge-sheet was not filed or laid within the period of 90 days stipulated by law. The prosecution maintained that it has not violated this legal requirement for it says that the charge-sheet in prescribed format wi....
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....018. Then there are certain objections viz. entire charge-sheet having double page numbers, page number of document is not mentioned correctly in the index, etc. After that, at the foot of page 221, there is an endorsement that these objections which were recorded in the records are now removed and complied with on 24th January 2018. 25. We are not therefore deciding as to what is the correct and prescribed procedure. We are only deciding whether the Petitioner's detention or rather continued detention beyond the statutory period by the police machinery is illegal or the Petitioner has not been released from the custody despite the mandate of the law being clear. 26. This is a case where the Petitioner was indeed produced before the Court of Special Judge and he was remanded to custody vide order of that Court passed by the Special Judge. The order of the Special Judge records as to how there is a charge-sheet filed and which we have reproduced above. The record indicates as to how the learned Judge indeed took it on record and then remanded the Petitioner to the custody. The order of the Special Judge therefore cannot be scrutinized by us and we are not concerned with this....
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....Anr.) , while resolving a conflict between divergent opinions in the Single Bench orders of this Court, the above situation has been elaborately discussed. During the course of discussion and following Pragya Singh Thakur (supra) this is what the Division Bench held in para 38 as under :- "38. In Pragya Singh Thakur (supra), the Hon'ble Supreme Court held that every detention cannot be held to be illegal. In para 63, this is what is held. "63. The decisions relied upon by the learned counsel for the appellant do not support the plea that in every case where there is violation of Article 22(2) of the Constitution, an accused has to be set at liberty and released on bail. Whereas, an accused may be entitled to be set at liberty if it is shown that the accused at that point of time is in illegal detention by the police, such a right is not available after the Magistrate remands the accused to custody. Right under Article 22(2) is available only against illegal detention by the police. It is not available against custody in jail of a person pursuant to a judicial order. Article 22(2) does not operate against the judicial order." Therefore, it is clear that every detention ....