In a recent judgment, the Delhi High Court addressed a crucial legal question surrounding the continuity of custody when an accused is not produced from judicial custody on a scheduled hearing date. The court's decision, delivered by Justices Suresh Kumar Kait and Shalinder Kaur, sheds light on the nuanced circumstances that determine whether a break in custody occurs.

The case under consideration involved three habeas corpus petitions related to an Enforcement Case Information Report (ECIR) concerning alleged unlawful detention in Tihar Jail. The central issue revolved around the absence of a judicial order remanding the petitioners to judicial custody, as mandated by Section 167 of the Code of Criminal Procedure, 1973 (CrPC).

The Directorate initiated the ECIR under the Prevention of Money Laundering Act, 2002 (PMLA), based on money laundering accusations linked to a scheduled offense under the Indian Penal Code, 1860 (IPC). Seeking directions against the Union (Respondents), the petitioners aimed to secure their immediate release from alleged illegal detention.

The court, recognizing the extraordinary nature of a writ of habeas corpus reserved for cases violating personal liberty, underscored the importance of adherence to the law in custody matters, citing Article 21 of the Constitution. The Bench carefully examined the order, noting the absence of the physical presence of the petitioners and emphasizing the lack of a written remand order.

The court identified two distinct scenarios concerning the filing of a charge sheet or prosecution complaint. In the first scenario, if the competent court takes cognizance under Section 309 of CrPC based on the chargesheet, and the accused is not physically brought before the court but a production warrant is issued for the next hearing, the court affirmed the continuity of custody without a break.

In the second scenario, where the court does not take cognizance under Section 309, but the remand of the accused continues under the orders of the Magistrate, the court deemed such remand valid until cognizance is taken by the concerned court.

The court clarified that in the specific case discussed, where voluminous documents hindered the taking of cognizance under Section 309, the custody of the petitioners remained lawful as they were directed to stay in the "custody of the Court" with subsequent production warrants issued.

The judgment posed a hypothetical scenario, questioning the legality of custody during the period between the accused's last appearance and their upcoming production following the issuance of production warrants. The court affirmed that in such a situation, the custody is continuous, and no "break" in custody occurs. However, it distinguished this from a scenario where the accused is not produced before the court on the hearing date, and a production warrant is subsequently issued, deeming the custody potentially illegal during the intervening break period.

The court also highlighted the authority of some Additional Sessions Judges' courts, particularly those designated to handle Special Statutes, to issue remands during investigations and take cognizance of chargesheets under Section 309 of CrPC.

In conclusion, the Delhi High Court dismissed the writ petition, upholding the validity of the remand and emphasizing the importance of legal procedures in ensuring the rights of the accused.

Case: Nitin Garg v Union Of India & Anr.

W.P.(CRL) 3641/2023, CRL. M.A.33843/2023.