Document Fragment View

Matching Fragments

viii) On 29.11.2021, the Petitioner herein was arrested by ED, Kolkata in relation to ECIR/KLZO/-II/01/2021. The Petitioner was remanded to judicial custody vide order dated 13.12.2021 till 23.12.2021. The Petitioner was lodged in Presidency Correctional Home, Kolkata.

ix) While the Petitioner was in judicial custody in Kolkata, the Respondent herein filed a petition under Section 267 of the Cr.P.C. r/w Section 50 of the PMLA seeking issuance of P.T. warrants and a direction to Superintendent, Presidency Correctional Home, Kolkata so as to produce the Petitioner before the Metropolitan Sessions Judge, Hyderabad and to continue the investigation in ECIR/HZO/08/2012. The copy of the petition under Section 267 of the Cr.P.C. r/w Section 50 of the PMLA was KL,J also served on the Petitioner through the Superintendent, Presidency Correctional Home, Kolkata and in the said petition, the Petitioner was informed that he has been arrested under Section 19 of the PMLA.

"11. In a given case, if accused is already in judicial custody in connection with one crime and when the Investigation Officer wants to effect his arrest in some other crime, the Apex Court in C.B.I. v. Anupam, J. Kulakarni's case (1 supra) observed that he can effect formal arrest of the accused in prison, but he cannot take him into custody without taking prior approval of the concerned court, as his detention has already been authorized by a concerned Magistrate in connection with some other case. It is not permissible for the Police Officer to remove the person from that place by effecting his arrest. Hence, the apex court in the judgment referred to above used the words 'formal arrest'. When once such "formal arrest" is effected in prison, it would not be possible for the police officer to produce him before the nearest Magistrate within 24 hours for the purpose of further remand, since he cannot be removed or moved out from the jail. In such a situation, the only method by which he can seek production of the accused before the concerned Magistrate for the purpose of remand is to invoke the provision under Section 267 Cr.P.C. It is to be noted here that P.T. warrant can be issued by that Magistrate within whose jurisdiction the crime is registered and in which the production is sought, but (2019) 3 ALT 474.
"He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the Court and submits to its directions.

16. From the judgment of Niranjan Singh's case (4 supra) it is very clear that an accused can be in custody not only when the Police arrests him, but also when remanded on his surrender before the court and submitting to its jurisdiction. Therefore, as observed by the Apex Court in Anupam, J. Knlkarni 's case (1 supra) arrest shall never be a pre-condition for remand, and that one need not be arrested and produced before the KL,J Court, for the purpose of remand and to the judicial custody of the Court. He can be stated to be in judicial custody when remanded on his surrender before the Court and submits to its jurisdiction. However, his physical control or at least physical presence, coupled with submission to the jurisdiction and orders of Court, is a sine qua non. Be it on the production by the investigating agency, or on his own before the court. If the Court is of the opinion that he has committed cognizable offence and that his remand is warranted, it can direct him to be remanded to judicial custody under Section 167 Cr.P.C., though not arrested by any investigating agency. That being the position, the argument of the learned counsel for the petitioner that arrest is a pre-condition for remand may not be correct. But however, the power of remand is to be exercised under Section 167 Cr.P.C. only and not under Section 267 Cr.P.C. As held by us earlier, remand of an accused under Section 267 Cr.P.C. it self may not be correct, but remanding an accused by an order of court is a pre- requisite for the purpose of making an application for seeking bail.

XXX

18. In the instant case, the grievance of the petitioner is that the petitioner is involved in number of cases and that his remand is sought by the police on P.T. warrant without effecting his arrest and that the accused is being remanded on P.T. warrant, contrary to provisions of Section 267 Cr.P.C.

19. A Division Bench of the Madras High Court in State by Inspector of Police v. K.N. Nehru (Crl.O.P.(MD) No. 13683 of 2011, dated 3-11-2011) while dealing with an identical situation observed as under: