The Allahabad High Court has dismissed the petition challenging the order passed by the Special Judge in a case registered under section 120-B and Section 7, 8, 9, 10 & 12 P.C Act, 1988.
The Division Bench of Justice Anjani Kumar Mishra and Justice Vivek Kumar Singh passed this order while hearing a Habeas Corpus Petition filed by Ramit Lala And 3 Others.
The Habeas Corpus Petition seeks the following reliefs:-
“i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.06.2023 passed by Special Judge, P.C Act (C.B.I, Ghaziabad) in Criminal Misc Case u/s 120-B and Section 7, 8, 9, 10 & 12 P.C Act, 1988 (As amended in 2018), P.S CBI/AC-I/New Delhi.
ii) Issue a writ, order or direction in the nature of Habeas Corpus directing the respondent concerned to release the petitioners from custody and produce before the Court on the date fixed.”
The facts of the case are that the petitioners were arrested on 25.04.2023 in connection with Sections 120B IPC and Sections 7, 8, 9, 10 & 12 of the Prevention of Corruption Act, 1988, P.S CBI/AC-I/New Delhi.
It is submitted that the charge-sheet was filed on 22.06.2023 and thereafter, the case was registered as a miscellaneous case and 26.06.2023 was fixed for hearing on the question of cognizance. On the next date i.e, 26.06.2023, the impugned order was passed. The court did not take cognizance on that date since requisite sanction for prosecuting Ramit Lala, a General Manager of Broadcast Engineering Consultants India Pvt Ltd, had not been obtained. The next date fixed was 10.07.2023. Simultaneously, the petitioners were remanded to judicial custody under Section 309 CrPC.
It is contended that the power under Section 309 Cr.P.C, can be invoked by a Court only after cognizance had been taken and not before that. Under the circumstances, remanding the petitioners to judicial custody is illegal and renders custody of the petitioner illegal.
The petitioners in the petition are Managing Director, President & Business Head and Director respectively of M/s Fusion Corporate Solutions Pvt Ltd.
The contention of Gyan Prakash, ASGI, appearing for respondents is two fold. He has submitted that upon perusal of the charge-sheet itself, it is clear that the investigation is still not complete.
He has next submitted that the remand order is one under Section 167(2) of the Act as it has been passed when the investigation is still not complete.
He further submitted that in any case mere mention of Section 309 I.P.C, would not render the order non-est because the Magistrate did possess the power to order judicial remand under Section 167.
The Court said that there is no doubt that Section 309 Cr.P.C cannot be invoked by a Magistrate or the Special Judge as in the instant case, at the pre-cognizance stage. The power under this Section can be exercised only after the Court has taken cognizance. It is not in dispute that cognizance has not been taken as requisite sanction for prosecution for some of the accused had not been obtained.
The Court noted that,
Under the circumstances, the only provision which permits an accused to be remanded to judicial custody is Section 167(2) of the Criminal Procedure Code.
The first proviso to the said Section namely a (ii) provides that the total period of remand of an accused cannot be more than 60 or 90 days depending upon the offence An accused who has completed 60/90 days in custody as per the offence under investigation shall be released on bail if investigation has not been concluded and if he is prepared and does furnish bail.
From a bare reading of proviso a(ii) of Section 167 sub-section 2, it is clear that on the expiry of 60 days of judicial and police remand an accused is entitled to default bail. This entitlement is subject to a prayer and readiness of the accused to furnish bail and such bail should be actually furnished.
In the case at hand, on a pointed query by the Court, Gopal Chaturvedi has stated that no such prayer was made on 26.06.2023 seeking bail when the order of remand was passed nor has it been stated in the petition or submitted by the counsel for the petitioner that bail was actually furnished.
“Under the circumstances, therefore, the order of remand cannot be said to be illegal. For the same reason and since the remand order dated 26.06.2023 was not per se illegal in the absence of a prayer for default bail and in the absence of any bail bond, security etc, having been furnished. Moreover, the charge-sheet had already been filed and therefore, the question of granting default bail did not arise even if cognizance had not been taken.
Therefore, the order of judicial remand passed on 26.06.2023 cannot be said to be illegal in any manner despite mention of section 309 Cr.P.C in the order of remand dated 26.06.2023, in view of the pronouncement of the Supreme Court in Pradeep Ram (Supra).
Since the petitioners have been remanded to judicial custody by a legal order, such detention is not illegal. Therefore, no habeas corpus will lie. The petition, insofar as it claims issuance of a writ of habeas corpus is not maintainable
Since a charge-sheet had been filed against the petitioners on 22.06.2023, they were not entitled to default bail. Their judicial remand by the order dated 26.06.2023 is fully justified. The order, therefore, is not liable to be quashed”, the Court observed while dismissing the petition.