SUDHAKAR RASTOGI Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Shri Jyotindra Mishra, learned Senior Counsel assisted by Shr Jitendra Singh, learned counsel for the petitioner, Shri R.K. Dwivedi, learned A.G.A. on behalf of the State and perused the record.

(2.) The instant Habeas Corpus Petition has been preferred challenging the detention of the petitioner in compliance of the remand order and custody warrant issued under section 309 Cr.P.C., 1973 with prayer to issue writ in the nature of Habeas Corpus, directing and commanding the respondents no.2 to produce the detenue petitioner, before this Court and to release forthwith from the illegal custody and to pass any appropriate order.

(3.) Learned counsel for the petitioner submitted that the petitioner Sudhakar Rastogi was falsely implicated in Case Crime No.07/2017 under sections 419, 420, 467, 468, 471, 120B IPC section 12 Passport Act and section 7/13 P.C. Act, PS. ATS, Lucknow. He was arrested on 12.4.2017 at about 10:30 hours, produced before the Magistrate concerned on the same day and was remanded to the judicial custody on the same day. The investigation remains pending. Since the period of 90 days was expiring on 10.7.2017, hence the investigating officer submitted his report under section 173 Cr.P.C., 1973 on the date, before the Special Judge P.C. Act, Lucknow. Since the sanction for prosecution was not received and as such the Special Judge did not take cognizance on the police report and passed remand order under section 309 Cr.P.C., 1973 fixing 24.7.2017, hence the custody of the petitioner is illegal, and without jurisdiction as there was no provision to pass remand order under section 309 before cognizance. He submitted that the remand under section 309 Cr.P.C., 1973 has to be passed after congizance and as such since the remand order and custody warrant is illegal and without jurisdiction and as such the direction be issued to the respondents authority concerned to release the petitioner forthwith from the judicial custody. He relied the judgment of Hon. Apex Court 2007 AIR SCW 6112 Dinesh Dalmia v. C.B.I. , 1997 SCC (Cri) 636 C.B.I. v. Dawood Ibrahim Kaskar and others , 1992 SCC (Cri) 554 Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J.Kulkarni , and (2009) 2 SCC (Cri) 1047, Methabhai Pashabhai Patel and others v. State of Gujarat.