Vivo Money Laundering Case: Delhi High Court Dismisses Pleas Of Three Accused Alleging Illegal Detention In Jail Sans Judicial Order

The Delhi High Court yesterday dismissed the pleas filed by three accused, in a money laundering case registered against smartphone manufacturer Vivo, alleging illegal custody in Tihar jail for want of judicial order remanding them to judicial custody.

A division bench of Justice Suresh Kumar Kait and Justice Shailender Kaur rejected the habeas corpus pleas moved by Nitin Garg, Pranay Rai and a Chinese national Guangwen Kuang alias Andrew.

While rejecting the accused's argument that they were suffering illegal custody since December 07, the court said:

“The learned ASJ-04 has rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of learned ASJ-04.”

The three accused claimed that their continued illegal detention suffered from the vice of being in vacuum, as that there was no judicial order remanding them to judicial custody as mandated under Section 167 of the Code of Criminal Procedure, 1973, or any provision.

It was their case that in absence of any judicial order remanding them to judicial custody, their detention had become patently illegal.

They sought a direction to the authorities to produce them and direct their forthwith release from the “illegal detention” in jail, thereby declaring their custody arbitrary and illegal.

Rejecting their petitions, the bench said that an order of remand by a competent court is essentially a judicial function and cannot be challenged by way of writ of habeas corpus unless and until the remand order lacks jurisdiction or is absolutely illegal resulting in unlawful “custody”.

“It is true that an order of remand can be challenged in a Habeas Corpus petition if such an order is passed in an absolutely mechanical or casual manner. The contention of learned Senior Counsels for the petitioners cannot be brushed aside that a valid custody remand can be made in accordance with express provisions of law, when the custody of an arrested person is illegal, such a person is entitled to be released forthwith,” the court said.

It added that initially after being remanded to police custody, the three accused persons were remanded to judicial custody from time to time under Section 167(2) Cr.P.C by the trial court till December 07.

Furthermore, the bench noted that judicial custody of the accused was expiring on December 07, however, while they were not produced before the trial court, they were represented through their respective counsels and no objection was raised by any lawyer regarding their production warrants.

“It is also not the case of the petitioners that prosecution complaint was filed by ED beyond the stipulated period thereby entitling the petitioners for “default bail”. Also no bail application was moved on behalf of any of the petitioners at that time. In such a situation, the petitioners have to remain in “custody of court”. Thus, the learned ASJ- 04 rightly directed for issuance of production warrants for the petitioners to be produced in the Court on the next date of hearing,” the court said.

The bench ruled that when an accused facing trial is not produced from judicial custody due to some unavoidable reason and the court issues production warrant while posting the matter for the next date of hearing, in such a situation the custody of accused is continuum and there is no “break” in the custody of such an accused.

“The position, however, will be different when, the accused is not produced before such a Court on the date of hearing and no production warrant is issued for the said accused on the same date of hearing but is issued subsequently. In such a situation, the custody of the accused will not be in continuum and for the break period, it may be illegal,” the court said.

Title: NITIN GARG v. UNION OF INDIA & ANR. and other connected matters

Citation: 2023 LiveLaw (Del) 1314

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