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2023 DIGILAW 1931 (ALL)

Ramit Lala v. State Of U. P.

2023-08-10

ANJANI KUMAR MISHRA, VIVEK KUMAR SINGH

body2023
ORDER : 1. Shri G. S. Chaturvedi, learned Senior Advocate for the petitioner and Shri Gyan Prakash for the respondents. 2. This petition which has been titled as a 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 No. 04/2023 (C.B.I. Vs. Ramit Lala & others), pertaining to RC No. 2162023A0004 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 (Annexure No.1) to this writ petition). 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 this Hon'ble Court on the date fixed." 3. On the matter being taken, a prayer was made by learned counsel for the petitioner for deleting the first petitioner, Ramit Lala, from the array of the parties which permission was granted and necessary deletion has been made in the array of the parties. 4. The petition has been entered in the data base as Ramit Lala and three others. Since the name of the first petitioner has been deleted, the petition should now be entered in the data base as Monica Dhawan and two others. This requisite correction be made by the Computer Section in the computer data base. 5. The brief facts of the case are that the petitioners were arrested on 25.04.2023 in connection with RC No. 2162023A0004 under Sections 120B IPC and Sections 7, 8, 9, 10 & 12 of the Prevention of Corruption Act, 1988, P.S. CBI/AC-I/New Delhi. 6. 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 Cr.P.C. 7. 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. The next date fixed was 10.07.2023. Simultaneously, the petitioners were remanded to judicial custody under Section 309 Cr.P.C. 7. 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. 8. It would be relevant to note that the petitioners in this writ petition are Managing Director, President & Business Head and Director respectively of M/s Fusion Corporate Solutions Pvt. Ltd. 9. The contention of Shri 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 referred to Page 68 of the paper book especially paragraph 16.91 of the charge-sheet. The said paragraph reads as follows:- "16.91-Investigation in respect of certain points with regard to obtaining bribe by Shri Ramit Lala from some other contractors is yet not completed and separate supplementary report will be submitted under Section 173(8) Cr.P.C., on conclusion of investigation. Further investigation in respect of purportedly fake bills submitted by M/s. Fusion Corporate Solutions Pvt. Ltd., to BECIL is also kept open." 10. 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 submits 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. 11. He has placed reliance upon a decision of Apex Court namely Pradeep Ram Vs. State of Jharkhand and others, AIR 2019 Supreme Court 3193 wherein it has been held in paragraph 65 as follows:- "65. The special Judge in his order has neither referred to Section 309 nor Section 167 under which accused was remanded. When the Court has power to pass a particular order, non-mention of provision of law or wrong mention of provision of law is inconsequential. The special Judge in his order has neither referred to Section 309 nor Section 167 under which accused was remanded. When the Court has power to pass a particular order, non-mention of provision of law or wrong mention of provision of law is inconsequential. As held above, the special Judge could have only exercised power under Section 309(2), hence, the remand order dated 25.06.2018 has to be treated as remand order under Section 309(2) Cr.P.C. The special Judge being empowered to remand the accused under Section 309(2) in the facts of the present case, there is no illegality in the remand order dated 25.06.2018 when the accused was remanded to the judicial custody." 12. We have considered the submissions made by learned counsel for the parties and perused the order impugned dated 26.06.2023. 13. 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. 14. 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. In this context, it would be relevant to examine Section 167(2) Cr.P.C. which reads as follows: "167. Procedure when investigation cannot be completed in twenty four hours:- (1)............. (2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that- (a). the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days; if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. Explanation I.-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail; Explanation II.-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention." 15. 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. 16. This provision came for consideration before the Apex Court in Natabar Parida Bisnu Charan Parida Batakrushnaparida Balaji Vs. 16. This provision came for consideration before the Apex Court in Natabar Parida Bisnu Charan Parida Batakrushnaparida Balaji Vs. State of Orissa AIR 1976 SC 1465 as observed as follows:- "But then the command of the Legislature in proviso (a) is that the accused person has got to be released on bail if he is prepared to and does furnish bail and cannot be kept in detention beyond the period of 60 days even if the investigation may still be proceeding." 17. 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. 18. In the case at hand, on a pointed query by the Court, Shri 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 learned counsel for the petitioner that bail was actually furnished. 19. The Apex Court in Suresh Kumar Bhikamchand Jain Vs. State of Maharashtra (2013) 3 SCC 77 has laid down as follows:- "17. In our view, grant of sanction is nowhere contemplated under Section 167 Cr.P.C. What the said Section contemplates is the completion of investigation in respect of different types of cases within a stipulated period and the right of an accused to be released on bail on the failure of the investigating authorities to do so. The scheme of the provisions relating to remand of an accused, first during the stage of investigation and, thereafter, after cognizance is taken, indicates that the Legislature intended investigation of certain crimes to be completed within 60 days and offences punishable with death, imprisonment for life or imprisonment for a term of not less than 10 years, within 90 days. In the event, the investigation is not completed by the investigating authorities, the accused acquires an indefeasible right to be granted bail, if he offers to furnish bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the Court has no option but to release the accused on bail. Accordingly, if on either the 61st day or the 91st day, an accused makes an application for being released on bail in default of charge-sheet having been filed, the Court has no option but to release the accused on bail. The said provision has been considered and interpreted in various cases, such as the ones referred to hereinbefore. Both the decisions in Natabar Parida's case (supra) and in Sanjay Dutt's case (supra) were instances where the charge-sheet was not filed within the period stipulated in Section 167(2) Cr.P.C. and an application having been made for grant of bail prior to the filing of charge-sheet, this Court held that the accused enjoyed an indefeasible right to grant of bail, if such an application was made before the filing of the charge-sheet, but once the charge-sheet was filed, such right came to an end and the accused would be entitled to pray for regular bail on merits. 18. None of the said cases detract from the position that once a charge-sheet is filed within the stipulated time, the question of grant of default bail or statutory bail does not arise. As indicated hereinabove, in our view, the filing of charge-sheet is sufficient compliance with the provisions of Section 167(2) (a)(ii) in this case. Whether cognizance is taken or not is not material as far as Section 167 Cr.P.C. is concerned." 20. 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, question of granting default bail did not arise even if cognizance had not been taken. 21. 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 22. 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 22. 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 impugned order dated 26.06.2023 is fully justified. The order, therefore, is not liable to be quashed. 23. Since, both the reliefs claimed in the writ petition cannot be granted for the reasons given above, this writ petition fails and is dismissed.