The main legal point established in the judgment is the requirement of a valid remand order under CrPC 167 and 309 to maintain the legality of the custody and the continuity of custody with the court.

JUDGMENT

Mukta Gupta, J. The present petition has been filed by the petitioner seeking a writ of Habeas Corpus to forthwith release the petitioner from illegal custody in a criminal case pending before the learned Special Judge, P.C.Act-CBI-03, Rouse Avenue District Courts, titled as `Asstt. Director PMLA Vs. SSK Trading Pvt. Ltd. and Ors.' in ECIR No. 06/DLZO1/2018 dated 8th May 2018 recorded by the Directorate of Enforcement as also setting aside of the order dated 24th January 2023 passed by the learned Special Judge and the consequent remand of the petitioner herein till 21st February 2023.

2. The brief background resulting in filing of the present writ petition is that the petitioner was arrayed as an accused in the above-noted ECIR and was arrested on 15th November 2022. The petitioner was remanded to judicial custody for 6 days on 16th November 2022 and thereafter, for 6 days till 22nd November 2022, following which, the petitioner was remanded to judicial custody which order of remand was extended by the learned Special Judge from time to time under Section 167 CrPC. On 13th January 2023, the respondent filed the complaint and the matter was adjourned by the learned Special Judge to 24th January 2023 for consideration on the complaint. On 24th January 2023, learned Special Judge without taking cognizance of the complaint adjourned the proceedings by almost a month i.e. till 21st February 2023 and in the meantime, no remand order was passed. Thus, the petitioner approached this Court by way of the present petition filed on 8th February 2023 which came up before this Court for the first time on 9th February 2023 when notice was accepted on behalf of the Enforcement Directorate as also the State, the respondent No. 2 herein. Vide said order dated 9th February 2023, reply was directed to be filed before the next date with advance copy to the learned counsel for the petitioner and the writ petition was listed for 20th January 2023. When the matter came up before the Court on 20th February 2023, it was transferred to another Bench and was listed before this Bench today. In the meantime, the respondent No. 1 filed its affidavit on 18th February 2023 with advance copy to the petitioner.

3. Mr.Dayan Krishnan, learned Senior Counsel appearing on behalf of the petitioner contends that on the filing of the complaint on 13th January 2023, though the petitioner was not entitled to default bail as the complaint was filed within 60 days, however, since no cognizance was taken by the learned Special Court, the procedure as envisaged under Section 309 CrPC did not commence and the proceedings being still under Section 167 CrPC, the petitioner was required to be remanded to judicial custody for which, an application was also filed by the respondent-Directorate of Enforcement. However, the learned Special Court specifically dismissed the said application as infructuous in view of the complaint having been filed. He states that the custody of an accused cannot be a vacuum and there should be specific order for remand to judicial custody and in the absence thereof, the custody of the petitioner is illegal and thus, he is entitled to be released forthwith.

4. Learned Senior Counsel for the petitioner further points out that after the petitioner filed this petition on 8th February 2023, the learned Special Judge on the request of the Reader and not any of the parties, took up the matter suo-moto on 13th February 2023 and noted that the matter was fixed for consideration on 24th January 2023 from which date, it has been adjourned to 21st February 2023 as the Enforcement Directorate has sought time to file detailed synopsis and complete chart of money trail, however, while adjourning the matter, fixing the date of Rehnumai skipped notice of the Court as well as both the parties. It is stated that this finding of the learned Special Judge is wholly incorrect in view of the order passed on 13th January 2023, whereby, an application of the Enfor