Case Law Details
Nitin Garg Vs Union of India & Anr (Delhi High Court)
Conclusion: When the accused was not produced before a Court on the date of hearing and no production warrant was issued for the said accused on the same date of hearing but was issued subsequently, the custody of the accused would not be in continuum and for the break period, it might be illegal. However, ASJ-04 had rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of ASJ-04.
Held: The three habeas corpus petitions were taken up to be disposed of together vide the common judgment as they pertain to the same Enforcement Case Information Report bearing No. ECIR/STF/02/2022 [“ECIR”] and involve the same question with respect to the illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody. The petitioners prayed for issuance of writ of habeas corpus or any other appropriate direction to the respondents, inasmuch as the fundamental rights of the petitioners as guaranteed under Articles 14, 21 and 22 of the Constitution of India had been violated by the respondents. Their continued illegal detention suffered from the vice of being in vacuum, as that there was no judicial order remanding them to judicial custody as mandated under Section 167 of the Code of Criminal Procedure, 1973 or even otherwise under any provision of Cr.P.C. In absence of any judicial order remanding them to custody of Jail Superintendent, Tihar Jail, their detention had become patently illegal. The petitioners were seeking direction to the respondents to produce the petitioners and direct the forthwith release of the petitioners from illegal detention of the respondents thereby declaring the custody of the petitioners arbitrary and illegal. It was held that no cognizance was taken on 07.12.2023 as required under Section 309 Cr.P.C as ED had submitted before the ASJ-04 that the documents in the case were voluminous, kept in 16 trunks. The documents had to be scrutinised by the Ahlmad of the court and the ASJ-04 directed ED to hand over the documents to the Ahlmad for scrutiny on 09.12.2023 and adjourned the case for consideration on the aspect of cognizance on 13.12.2023 at 2 pm. The judicial custody of the petitioners was expiring on 07.12.2023, however, the peculiar and distinct facts and circumstances as emerging from present writs were that the petitioners were not produced before the ASJ-04. All the petitioners were represented through their respective counsels and no objection was raised by any of the counsels regarding order for production warrants of the petitioners. It was also not the case of the petitioners that prosecution complaint was filed by ED beyond the stipulated period thereby entitling the petitioners for “default bail”. Also no bail application was moved on behalf of any of the petitioners at that time. In such a situation, the petitioners had to remain in “custody of court”. Thus, the ASJ- 04 rightly directed for issuance of production warrants for the petitioners to be produced in the Court on the next date of hearing. As per record, the said production warrants were issued on 09.12.2023 for production of the petitioners for 13.12.2023. Assuming a competent court had taken cognizance of chargesheet/prosecution complaint and posts the case at a particular stage of proceedings/trial, however, on the said date of hearing, the accused in that case was not produced from judicial custody, due to some unavoidable reason. In such a situation, the court issued production warrant against the said accused and the case was posted for the next date of hearing. The position, however, would be different when, the accused was not produced before such a Court on the date of hearing and no production warrant was issued for the said accused on the same date of hearing but was issued subsequently. In such a situation, the custody of the accused would not be in continuum and for the break period, it might be illegal. Thus, the Court was unable to sustain the submissions made on behalf of the petitioners that the petitioners were suffering illegal custody since 07.12.2023. The ASJ-04 had rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of ASJ-04.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. The three habeas corpus petitions i.e., W.P.(CRL) 3641/2023, W.P.(CRL) 3657/2023 and W.P.(CRL) 3662/2023 are being taken up to be disposed of together vide this common judgment as they pertain to the same Enforcement Case Information Report bearing No. ECIR/STF/02/2022 [hereinafter referred to as “ECIR”] and involve the same question with respect to the illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody. The petitioners pray for issuance of writ of habeas corpus or any other appropriate direction to the respondents, inasmuch as the fundamental rights of the petitioners as guaranteed under Articles 14, 21 and 22 of the Constitution of India have been violated by the respondents. Their continued illegal detention suffers from the vice of being in vacuum, as that there is no judicial order remanding them to judicial custody as mandated under Section 167 of the Code of Criminal Procedure, 1973 [hereinafter referred to as “Cr.P.C”] or even otherwise under any provision of Cr.P.C. In absence of any judicial order remanding them to custody of Jail Superintendent, Tihar Jail, their detention has become patently illegal. The petitioners are seeking direction to the respondents to produce the petitioners and direct the forthwith release of the petitioners from illegal detention of the respondents thereby declaring the custody of the petitioners arbitrary and illegal.
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