Police Can't Add More Sections Against Accused And Seek Extension Of Custody By Mere Letter To Court Without Fresh Remand Papers: Bombay High Court

Justice SG Mehare of the Aurangabad bench observed that the accused has to be given an opportunity to contest the additional charges brought against him. It granted default bail to four persons accused of cryptocurrency fraud.

“…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 more than the period prescribed under Section 167 of the Cr.P.C…the extension of remand, particularly after adding new sections constituting the serious offence, is not a bare formality. The Court extending the detention of the accused for a period more than prescribed under the law has to pass a speaking order after hearing both sides,” the court held.

The complainant alleged that one Kiran Kharat and Deepti Kharat induced him to invest money in global digital cryptocurrency for attractive returns. Global digital cryptocurrency was under their control and was likely to be introduced in December 2022. The complainant claimed that he invested huge amount but the cryptocurrency’s price was far lower than expected as assured by the Kharat family.

In the FIR, the four persons – Irfan Syed, Amod Mehtar, Venkatesh Bhoi, and Ramesh Uttekar were accused under sections 420, 120-B, 504, and 506 of the IPC and Sections 3, 4 and 5 of Maharashtra Protection of Interest of Depositors Act, 2002.

The accused were arrested on February 3, 2023. The court remanded them to police custody till February 17, 2023 and judicial custody thereafter. Their bail applications were rejected on April 4, 2023, and the remand was extended regularly after every 15 days.

The police on March 27, 2023 wrote a letter to the Sessions Judge stating that sections 406 (punishment for criminal breach of trust) and 409 (criminal breach of trust by public servant, or by banker, merchant or agent) of IPC have been added in the crime. On March 31, 2023, the investigating officer wrote a letter to the Additional Sessions Judge seeking extension of 30 days to submit the chargesheet. The Additional Sessions Judge passed an order stating "seen and filed at 5.40 p.m. Considering Sections applied, Investigating Officer, do needful as per laws".

As per section 167 of the CrPC, if the investigation relates to an offence punishable with death, life imprisonment, or imprisonment for 10 years, the court can extend judicial custody for up to 90 days. Otherwise, judicial custody can be extended up to 60 days. If the charge sheet is not filed within this period, the accused is entitled to default bail.

In the present case, the sections applied against the accused in the FIR are not punishable by death, life imprisonment or imprisonment for at least 10 years. Thus, charge sheet was to be filed within 60 days of arrest. However, section 409 of the IPC, that the police sought to add subsequently, is punishable with up to 10 years imprisonment.

The question before the court was whether a mere letter to the judge adding the sections against the accused results in automatic extension of judicial custody up to 90 days.

The prosecution contended that since sections 406 and 409 of IPC were applied before completion of 60 days, the accused have no claim to default bail. Further, material to attract these sections was already on record but the sections were inadvertently not applied in the FIR.

The court said it is assumed that at the time of the first remand, the sessions court examined the material produced before it and granted police custody based on that. However, without fresh remand papers, the custody cannot be extended, the court added.

The detention of the accused for a period more than prescribed under law was not done through a speaking order in this case, the court said.

The court noted that the prosecution did not produce any material to show that the accused fall under any of the seven categories mentioned in section 409 of the IPC. Therefore, the IO cannot seek an extension to file the charge sheet, the court held.

The court noted that in the present case the charge sheet was not filed within 60 days. Thus, the magistrate extending the judicial custody became functus officio and his power to extend the remand seized as soon as the prescribed period of filing the charge sheet got over, the court held.

Case no. – Bail Application No.712 of 2023

Case Title – Irfan Moiuddeen Saiyyed and Ors. v. State of Maharashtra