Rajkumar Bhagchand Jain vs Union Of India Through C.B.I. And ...
2017 Latest Caselaw 9433 Bom

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
               CRIMINAL APPELLATE JURISDICTION 
                      WRIT PETITION NO.5095 OF 2017


 Rajkumar Bhagchand Jain,
 Age 57 years, Occupation Service,
 Residing at 622 R, Maha Laxmi
 Nagar, Bombay Hospital Nagar,
 Bombay Hospital Pani ki Tanki 
 ke Pass, Vijay Nagar, 
 Indore, Pin Code 452010.                          ....  Petitioner

          - Versus -

 1. Union of India
     Through C.B.I.,
     Office of SP CB EOW, 11th Floor,
     CBI building, G-Block, Plot No.C-35-A,
     Bandra Kurla Complex,
     Mumbai - 400 001.

 2. State of Maharashtra                           ....  Respondents


 Mr. Pankaj Jain with Mr. Kedar Khambate, Ms Sweta 
 Valecha & Ms Yogita Gogar i/by P.D. Jain & Co. for
 the Petitioner.
 Mr. H.S. Venegaonkar for Respondent No.1-UoI.
 Mrs. S.V. Sonawane, Addl. Public Prosecutor, for
 the Respondent-State.




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                                  CORAM: S.C. DHARMADHIKARI &
                                                 SMT. BHARATI H. DANGRE, JJ.

DATE : DECEMBER 08, 2017

ORAL JUDGMENT ( Per Shri S.C. DHARMADHIKARI, J. ) :

1. Rule. The respondents waive service through their

respective counsel. By consent, rule is made returnable forthwith

and the petition is taken up for final disposal.

2. This is a petition seeking a writ of habeas corpus for

release of the petitioner's son Rohit Jain from illegal and

unlawful continued judicial custody after 23-11-2017 till date in

CBI Case No.RC.3/E/2017 CBI EOW.

3. The few facts which are necessary for appreciating

the challenge raised in this petition are that the petitioner's son

was arrested on 19-9-2017 and was produced before the Court

of Additional Chief Metropolitan Magistrate, 3rd Court,

Esplanade, Mumbai on 20-9-2017. The arrest was in relation to

the above case and registered at the instance of the Central

Bureau of Investigation (CBI), Economic Offences Wing,

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Mumbai. The learned Additional Chief Metropolitan Magistrate

granted CBI custody till 28-9-2017. Thereafter, the son was

produced on 28-9-2017 as the CBI custody was extended till

28-9-2017. On second remand, the son was remanded to judicial

custody till 12-10-2017 and which continued till 9-11-2017.

4. Thereafter, on 9-11-2017, a further remand

application was moved and the judicial custody was granted till

23-11-2017.

5. That is how the maximum permissible custody of 60

days, as circumscribed by Section 167(2) of the Code of

Criminal Procedure, 1973, was over.

6. The precise argument is that the petitioner's son was

remanded on 9-11-2017 for an offence punishable with

maximum imprisonment extending to seven years. The Section

167 of the Code of Criminal Procedure reads as under:-

"167. Procedure when investigation cannot be completed in twenty-four hours.- (1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed

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within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.

(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

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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 of the accused in custody of the police under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage;

(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 clause (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be.

Provided further that in case of a woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognised social institution.

(2A) Notwithstanding anything contained in sub- section (1) or sub-section (2), the officer in charge of

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the police station or the police officer making the investigation, if he is not below the rank of a sub- inspector, may, where a Judicial Magistrate is not available, transmit to the nearest Executive Magistrate, on whom the powers of a Judicial Magistrate or Metropolitan Magistrate have been conferred, a copy of the entry in the diary hereinafter prescribed relating to the case, and shall, at the same time, forward the accused to such Executive Magistrate, and thereupon such Executive Magistrate, may, for reasons to be recorded in writing, authorise the detention of the accused person in such custody as he may think fit for a term not exceeding seven days in the aggregate; and on the expiry of the period of detention so authorised, the accused person shall be released on bail except where an order for further detention of the accused person has been made by a Magistrate competent to make such order; and, where an order for such further detention is made, the period during which the accused person was detained in custody under the orders made by an Executive Magistrate under this sub-section, shall be taken into account in computing the period specified in paragraph (a) of the proviso to sub-section (2):

Provided that before the expiry of the period aforesaid, the Executive Magistrate shall transmit to the nearest Judicial Magistrate the records of the case together with a copy of the entries in the diary relating to the case which was transmitted to him by the officer in charge of the police station or the police officer making the investigation, as the case may be.

(3) A Magistrate authorising under this section detention in the custody of the police shall record his reasons for so doing.

(4) Any Magistrate other than the Chief Judicial Magistrate making such order shall forward a copy of his order, with his reasons for making it, to the Chief

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Judicial Magistrate.

(5) If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary.

(6) Where any order stopping further investigation into an offence has been made under sub-section (5), the Sessions Judge may, if he is satisfied, on an application made to him or otherwise, that further investigation into the offence ought to be made, vacate the order made under sub-section (5) and direct further investigation to be made into the offence subject to such directions with regard to bail and other matters as he may specify."

7. The argument is that the petitioner's son's custody

upto 23-11-2017 is beyond the period of 60 days. It is thus in

clear violation of Section 167 of the Code of Criminal Procedure,

1973. It also violates the fundamental right guaranteed by

Article 21 of the Constitution of India.

8. The son applied for release on bail only on this

ground on 20-11-2017 but that was rejected. That was rejected

on the ground that during the course of investigations the

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prosecution invoked Sections 465, 467, 468 and Section 471 of

the Indian Penal Code and Section 13(2) r/w Section 13(1)(d)

of the Prevention of Corruption Act, 1988, in the same CBI case.

On that basis, it was argued by the CBI that the period for filing

the charge-sheet is 90 days instead of 60 days. However, the

statutory bail application being rejected, the petitioner made

inquiries as to whether there was any remand application or any

request made by the prosecution to extend the judicial custody

upon invocation and addition of the provisions of the Prevention

of Corruption Act, 1988. However, there is no record of any such

extension.

9. It is in the above circumstances that it was argued

before us that a writ of habeas corpus be issued if the detention

is ex facie illegal. Meaning thereby, if the detention in custody is

not permitted by law, then, this Court can order release of the

person in such illegal custody and a writ of habeas corpus can be

issued for that purpose.

10. Reliance was placed on several judgments of the

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Hon'ble Supreme Court of India.

11. On the earlier occasion, we had granted time to the

respondents as Mr. Venegaonkar was awaiting instructions.

12. The matter was placed today and both sides were

given a clear understanding that in the event there is no contra

material placed before us, particularly on affidavit of the

respondents, we would pass a final order on the petition.

Despite all persuasive abilities at his command,

Mr. Venegaonkar was unable to point out any contrary material,

particularly on the legal position, as emerging from the decision

of the Hon'ble Supreme Court in the case of Ram Narayan

Singh v. The State of Delhi and others, reported in AIR 1953

SC 277 right upto the recent decision delivered by a Bench

presided over by Hon'ble Shri Justice Dipak Misra, as His

Lordship then was, in the case of Manubhai Ratilal Patel

through Ushaben v. State of Gujarat and others, reported in

AIR 2013 SC 313.

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13. In the circumstances, we are constrained to hold that

the detention beyond the period of 60 days is in clear violation

of Section 167(2) of the Code of Criminal Procedure, 1973. Such

illegal detention in custody cannot be sustained as it is violative

of the right to life and liberty guaranteed by Article 21 of the

Constitution of India. Consequently, on the undisputed facts and

the detention being illegal, writ of habeas corpus can be issued.

We accordingly issue such writ. The rule is, therefore, made

absolute in terms of prayer clause (a). That prayer reads as

under:-

"(a) To issue a Writ of Habeas Corpus or any other appropriate Writ, Order or directions for forthwith release of the Petitioners Son namely Rohit Jain from the illegal and unlawful continued Judicial Custody after 23.11.2017 till date in the CBI Case No.RC.3/E/2017 CBI EOW without any order passed by any competent Court of law for the same and for quashing and setting aside the Order dated 09.11.2017 remanding the Petitioner's Son to judicial Custody till 23.11.2017."

(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)