Judicial Custody cannot be extended by mere letter to Court seeking to add more Sections against accused constituting serious offences: Bombay HC

Bombay High Court: In a bail application under Section 167(2)(a)(ii) of the Code of Criminal Procedure, 1973, (‘CrPC’) the Single Judge Bench of S.G. Mehare, J. allowed the accused persons application and granted them default bail. The Court said that in the absence of submitting the remand papers without knowledge of the accused, the prosecution cannot by a bare letter addressed to the Court, seek the extension of remand for more than the period prescribed under Section 167 of the Cr.PC.

Factual Matrix

In the matter at hand, the applicants/accused persons were accused of inducing the complainant to invest the money in Global Digital Crypto Currency (‘GDCC’) for attractive returns. The accused persons had represented before the complainant that the GDCC was under their management and control, which was likely to be introduced in December 2022 and allured him to invest the amount in it with a promise of hefty returns. Thus, the complainant had invested a huge amount, but the crypto currency’s price was far lower than as assured by the accused persons.

A case was registered against the accused persons for the offences under Sections 420, 120-B, 504, 506, 406, 409 read with Section 34 of the Penal Code, 1860 (‘IPC’) and Sections 3, 4 and 5 of the Maharashtra Protection of Interest of Depositors Act, 2002. The accused persons were arrested on 03-02-2023 and were remanded to police custody till 17-02-2023. Since then, they were in judicial custody and their bail application was rejected on 04-04-2023 and their remand was extended regularly after every 15 days. However, when a few days were remaining to complete the period of 60 days to file the charge sheet, the Police, on 27-03-2023, wrote a letter to the Sessions Court, informing that Sections 406 and 409 of IPC were added in the crime.

Later, on 31-03-2023, the Investigating Officer submitted a letter to the Additional Sessions Judge (‘ASJ’), seeking time to extend 30 days period to submit the investigation completing report under Section 173 of the Cr.PC. The ASJ passed an order considering the Sections applied. Thus, aggrieved by the order of the ASJ, wherein the bail was denied, the accused persons had approached the Court seeking default bail under Section 167(2)(a)(ii) of the Cr.PC.

Issue, Analysis and Decision

Whether barely addressing a letter to the Court and adding further Sections for which the punishment is death/imprisonment for life or imprisonment for a term of not less than ten years is sufficient to believe that the period of judicial custody has been automatically extended?

While referring to the case of Sayantan Chatterjee v. State of West Bengal, 2016 SCC OnLine Cal 4573 the Court said that it was the ratio of the said order that merely producing the remand for extension of detention is not sufficient. The Magistrate/Court must look into the facts, circumstances, and material collected and satisfy whether the Section applied by the Investigating Officer is supported with material and makes out the same offence.

The Court said that the extension of the police custody or judicial remand is not a bare formality. Further, the Court said that in case the Investigating Officer brings new material constituting a new offence under a particular Section during the Judicial custody of the accused before filing the charge sheet, in such case the Police must bring it to the notice of the accused by submitting fresh remand papers before the Court. So that the accused may have an opportunity to oppose the further extension of Judicial custody for the new offence on the basis of the material brought during his Judicial custody.

The Court also referred to Rajkumar Bhagchand Jain v. Union of India, 2017 SCC OnLine Bom 9435, wherein it was held that the detention beyond the period of 60 days is in clear violation of Section 167(2) of the CrPC.

The Court said that it is assumed that at the time of first remand the lower Court had examined the material produced before it and based on it, the police custody was granted, and then the accused persons were taken into Judicial custody. Further, the Court said that however, in the absence of submitting the remand papers without knowledge of the accused, the prosecution cannot by a bare letter addressed to the Court, seek the extension of remand for more than the period prescribed under Section 167 of the CrPC. The Court also said that extension of remand, particularly after adding new Sections constituting a serious offence, is not a bare formality. It was also said that the Court extending the detention of the accused for a period more than prescribed under the law, must pass a speaking order after hearing both the sides, which was not done in the present case.

The Court also noted that the prosecution did not produce before the Court any material showing that the accused fell under any of the seven categories mentioned in Section 409 of the IPC. Therefore, the Court said that the Investigating Officer cannot seek an extension of time to file a charge sheet, as the period of filing the charge sheet must be determined from the material and papers produced before the Magistrate/Judge. Further, the Court stated that “Once the right to claim the default bail arises, the accused is entitled to be released on bail, and no subterfuge should have resorted to defeat the indefeasible right”.

The Court noted that the charge sheet was not filed within the period of 60 days, therefore, the extension of the judicial custody by the Magistrate becomes functus officio. Thus, the Court said that the power of the Magistrate to extend the remand ceases as soon as the prescribed period of filing the charge sheet is over.

Therefore, the Court allowed the accused persons’ application and granted them default bail as the Investigating Officer failed to file the charge sheet within the period of 60 days as prescribed under Section 167 of the Cr.PC.

[Irfan Moiuddeen Saiyyed v. State of Maharashtra, 2023 SCC OnLine Bom 983, Order Dated: 03-05-2023]

Advocates who appeared in this case :

For the Applicants: Senior Counsel R. N. Dhorde, Advocate V.R. Dhorde;

For the Respondents: Assistant Public Prosecutor K. S. Patil, Advocate A.B. Ghule.