Will There Be Break In Custody Of Accused If He Is Not Produced Before Court On Date Of Hearing ? Delhi HC Explains

A competent court took cognizance of chargesheet/prosecution complaint and posted 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 that situation, can it be said that there will be a break in the custody? The Delhi High Court has answered this question in a recent judgment.

The court said that in such a situation, if the court issues production warrant against the said accused and the case is posted for the next date of hearing, 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.",he Bench comprising Justice Suresh Kumar Kait and Justice Shalinder Kaur observed.

Senior Advocate Sidharth Aggarwal appeared for the Petitioner. Standing Counsel Anurag Ahluwalia with Government Prosecutor Shivam Sachdeva, Special Counsel Zoheb Hossain and Special Public Prosecutors Simon Benjamin and Manish Jain appeared for the Union.

Three habeas corpus petitions were filed before the High Court, all related to an Enforcement Case Information Report (ECIR) concerning the alleged unlawful detention of the Petitioners in Tihar Jail. The primary issue was the absence of a judicial order remanding the Petitioners to judicial custody, as mandated by Section 167 of the Code of Criminal Procedure, 1973 (CrPC). The background revealed that the Directorate initiated the ECIR under the Prevention of Money Laundering Act, 2002 (PMLA), based on accusations of money laundering (Section 3, punishable under Section 4 of PMLA) linked to a scheduled offence under the Indian Penal Code, 1860 (IPC).

The Petitioners sought directions against the Union (Respondents) to produce them, order their immediate release from illegal detention, and declare the Petitioners' custody as arbitrary and illegal.

The Court observed the extraordinary nature of a writ of habeas corpus, typically reserved for cases of illegal confinement violating personal liberty. While emphasizing that an order of remand is generally a judicial function and not subject to habeas corpus challenges, the Court noted exceptions for mechanically or casually issued remand orders. The Court underscored the need for custody adherence to the law, citing Article 21 of the Constitution.

Regarding the power of remand under CrPC, the Bench observed the initial vesting of this power during the investigation stage, with custody remand under Section 309 of CrPC applicable post-investigation. Notably, the Bench scrutinized the order indicating the absence of physical presence of petitioners, emphasizing no written order was issued.

The Court noted two distinct situations related to the filing of a chargesheet or prosecution complaint in court. If the remand under Section 167(2) of the CrPC has not expired and the competent court takes cognizance under Section 309 based on the chargesheet/prosecution complaint, the accused is not physically brought before the court. Instead, the court issues a production warrant for the next hearing, without remanding the accused to judicial custody under Section 309 of CrPC.

In the second scenario, the chargesheet or prosecution complaint is filed before the competent court, but the court does not take cognizance under Section 309 of CrPC. However, the remand of the accused continues under the orders of the Magistrate. The Court reiterated that such remand granted by the Magistrate is valid, and the accused remains in the custody of the Magistrate until cognizance is taken by the concerned court.

In the case discussed, cognizance wasn't taken under Section 309 due to voluminous documents. The Court observed no illegality in the petitioners' custody since December 7, 2023, as they were directed to remain in the "custody of the Court" with production warrants issued subsequently.

The Court framed a hypothetical scenario, contemplating a competent Court that has taken cognizance of a chargesheet or prosecution complaint and has progressed the case to a specific stage of proceedings or trial. In this situation, if, due to an unavoidable reason, the accused is not produced from judicial custody on the designated hearing date, the Court issues a production warrant against the accused, and the case is rescheduled for the next hearing.

The Court then poses the question of whether, during the period between the accused's appearance on the last hearing date and their upcoming production before the Court in the execution of the production warrants, judicial custody can be considered illegal. The Court answers this question in the negative, asserting that in such a scenario, the custody of the accused is continuous, and there is no "break" in their custody.

However, the Court distinguished this situation from one where the accused is not produced before the Court on the hearing date, and no production warrant is issued for the accused on that same date but is subsequently issued. In this latter scenario, the Court states that the custody of the accused is not continuous, and for the intervening break period, it may be deemed illegal.

Additionally, the Court noted that some Additional Sessions Judges' courts, particularly those designated to handle Special Statutes, possess the authority to issue remands during investigations conducted by specialized agencies under Section 167 of the CrPC for a specified maximum duration. Additionally, these courts are empowered to take cognizance of chargesheets or prosecution complaints, conduct trials per the law, and grant remands under Section 309 of CrPC. In the case, the Court presided over by learned ASJ was identified as one such court with these designated powers and responsibilities.

Accordingly, the Court dismissed the Writ Petition.

Cause Title: Nitin Garg v Union Of India & Anr. (2023:DHC:9131-DB)

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