Delhi High Court Clarifies Impact on Custody if Accused is Absent on Hearing Date

LI Network

Published on: December 26, 2023 at 14:59 IST

The Delhi High Court addressed the question of whether there would be a break in the custody of an accused if they are not presented before the court on the scheduled hearing date.

The Court’s explanation came in response to a case where a competent Court had taken cognizance of charges but the accused was not produced from judicial custody on the designated date.

The Court clarified that if a production warrant is issued against the accused and the case is rescheduled for the next hearing, the custody remains continuous, and there is no interruption in the accused’s custody.

However, the Court highlighted a distinction when the accused is not presented on the hearing date, and a production warrant is subsequently issued. In such a scenario, the court observed that the custody may be considered illegal for the intervening break period.

The ruling stemmed from three habeas corpus petitions related to an Enforcement Case Information Report (ECIR) involving alleged unlawful detention in Tihar Jail.

The primary 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 Court underscored the exceptional nature of a writ of habeas corpus and emphasized the need for adherence to the law in matters of custody, citing Article 21 of the Constitution.

The ruling clarified the power of remand under CrPC, highlighting the importance of a written order and scrutinizing the absence of physical presence of the petitioners.

The Court also distinguished between scenarios where the competent court takes cognizance under Section 309 based on a chargesheet, and when the court does not take cognizance, but the remand continues under the orders of the Magistrate.

In the specific case discussed, the Court found no illegality in the custody of the petitioners since December 7, 2023, as they were directed to remain in the “custody of the Court” with subsequent production warrants issued.

The ruling provided clarity on the continuity of custody in situations where an accused is not produced on the hearing date, offering valuable insights into the legal implications of such scenarios.

Case Title: Nitin Garg v Union Of India & Anr.

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