Delhi High Court - Orders
Lakshay Vij vs Central Bureua Of Investigation on 14 November, 2024
$~97
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(CRL) 3532/2024 CRL.M.A. 33790/2024
LAKSHAY VIJ .....Petitioner
Through: Mr. Prabhav Ralli, Mr. Yuvraj
Bansal and Mr. Ravi Kant Yadav,
Advocates
versus
CENTRAL BUREUA OF INVESTIGATION .....Respondent
Through: Mr. Anupam S. Sharrma, SPP for
CBI with Ms.Harpreet Kalsi, Mr.
Prakarsh Airan, Advocates and Insp.
Sandeep, CBI, IOD/ND.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
ORDER
% 14.11.2024
1. Pursuant to previous order dated 12th November 2024, SPP for CBI submits that the decision in Harshad S. Mehta v. CBI 1992 SCC OnLine Del 461, has been differed to, by various decisions. He points out to the decision of a Single Judge of Rajasthan High Court in, State of Rajasthan v. Santosh Yadav 2005 SCC OnLine Raj 317, where, it has been held that police can seek permission to remove an accused from judicial custody to police custody, for completion of investigation, in another case, and for this purpose, production warrants under Section 267 Cr.P.C. can be issued.
2. He further draws attention to a decision by a three Judge Bench of the Supreme Court in, Dhanraj Aswani v. Amar S. Mulchandani 2024 SCC OnLine SC 2453, where the Supreme Court has delineated the procedure to be adopted, where arrest is to be made, on investigation in second offence, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/11/2024 at 01:33:57 when the accused is in custody for the first offence.
3. In this regard, he has adverted to paragraphs 44 and 52 of the said decision, which are extracted as under:
"44. As discussed in the preceding paragraphs, an accused could be arrested either when he is free or when he is in custody in some offence. Similarly, an arrest can be made by a police officer either without a warrant or with a warrant issued by a court. Thus, the following possibilities emerge:
a. If an accused is arrested without a warrant while he is free and not in custody, then he has to be produced before the nearest Magistrate, who may remand him to police or judicial custody or may grant bail if applied for by the accused. b. If an accused is arrested with a warrant while he is free and not in custody, then Section 81 of the CrPC permits the production of such a person before the court issuing the warrant.
c. If an accused is arrested with or without a warrant while he is already in custody in one offence, then it is only under Section 267 of the CrPC that he can be removed from such custody and produced before the Magistrate under whose territorial jurisdiction the other offence is registered.
xxx xxx xxx
52. As pointed out in the preceding paragraphs, a police officer can formally arrest a person in relation to an offence while he is already in custody in a different offence. However, such formal arrest doesn't bring the accused in the custody of the police officer as the accused continues to remain in the custody of the Magistrate who remanded him to judicial custody in the first offence. Once such formal arrest has been made, the police officer has to make an application under Section 267 of the CrPC before the Jurisdictional Magistrate for the issuance of a P.T. Warrant without delay. If, based on the requirements prescribed under Section 267 of the CrPC, a P.T. Warrant is issued by the jurisdictional Magistrate, then the accused has to be produced before such Magistrate on the date and time mentioned in the warrant, subject to Sections 268 and 269 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/11/2024 at 01:33:57 respectively of the CrPC. Upon production before the jurisdictional Magistrate, the accused can be remanded to police or judicial custody or be enlarged on bail, if applied for and allowed. The only reason why we have delineated the procedure followed in cases where a person already in custody is required to be arrested in relation to a different offence is to negate the reasoning of the Rajasthan, Delhi and Allahabad High Courts that once in custody, it is not possible to re-arrest a person in relation to a different offence. When a person in custody is confronted with a P.T. Warrant obtained in relation to a different offence, such a person has no choice but to submit to the custody of the police officer who has obtained the P.T. Warrant. Thus, in such a scenario, although there is no confinement to custody by touch, yet there is submission to the custody by the accused based on the action of the police officer in showing the P.T. Warrant to the accused. Thereafter, on production of the accused before the jurisdictional Magistrate, like in the case of arrest of a free person who is not in custody, the accused can either be remanded to police or judicial custody, or he may be enlarged on bail and sent back to the custody in the first offence. A number of decisions have held that although Section 267 of the CrPC cannot be invoked to enable production of the accused before the investigating agency, yet it can undoubtedly be invoked to require production of the accused before the jurisdictional Magistrate, who can thereafter remand him to the custody of the investigating agency. Such an interpretation of the provision would give true effect to the words "other proceedings" as they appear in the text of Section 267 of the CrPC, which cannot be construed to exclude proceedings at the stage of investigation. [See : C. Natesan v. State of Tamil Nadu, 1998 SCC OnLine Mad 931; Ranjeet Singh v. State of Uttar Pradesh, 1995 Cri LJ 3505; State of Maharashtra v. Yadav Kohachade, 2000 Cri LJ 959]"
(emphasis added)
4. Counsel for the CBI submits that due to difference of opinions of various courts, particularly, Rajasthan, Delhi and Allahabad, the Supreme Court in para 52 specifically notes that the opinion was being given, to negate the reasoning of various courts. The opinion which has been taken by various courts was that, once in custody, it was not possible to re-arrest a This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/11/2024 at 01:33:58 person in relation to a different offence.
5. Counsel for CBI further states that it is this procedure mandated by the Supreme Court which is being followed.
6. Petitioner had been arrested by the ED on 22nd July August 2024. Initially, an application was moved under Section 267 Cr.P.C., on 23rd October 2024, seeking production of petitioner, who was finally produced on 24th October 2024 before the Magistrate. He was interrogated by the IO for about 2 hours, in the Court before the Magistrate. Thereafter, petitioner was formally arrested and examined. Subsequent thereto, another application was moved for taking petitioner into police custody, which was allowed for a period of 4 weeks. Thereafter, he was sent to judicial custody on 28th October 2024.
7. Counsel for petitioner seeks to place submissions in this regard, as also, on the issue of necessity to arrest, under Section 41 Cr.P.C.
8. Accordingly, re-notify on 18th December 2024.
9. Order be uploaded on the website of this Court.
ANISH DAYAL, J NOVEMBER 14, 2024/sm/kp This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 16/11/2024 at 01:33:58