ORDER :

1. Shri G. S. Chaturvedi, learned Senior Advocate for the petitioner and Shri Gyan Prakash for the respondents.

2. This petition which has been titled as a Habeas Corpus Petition seeks the following reliefs:-

"i) Issue a writ, order or direction in the nature of Certiorari quashing the impugned order dated 26.06.2023 passed by Special Judge, P.C. Act (C.B.I., Ghaziabad) in Criminal Misc. Case No. 04/2023 (C.B.I. Vs. Ramit Lala & others), pertaining to RC No. 2162023A0004 u/s 120-B and Section 7, 8, 9, 10 & 12 P.C. Act, 1988 (As amended in 2018), P.S. CBI/AC-I/New Delhi (Annexure No.1) to this writ petition).

ii). Issue a writ, order or direction in the nature of Habeas Corpus directing the respondent concerned to release the petitioners from custody and produce before this Hon'ble Court on the date fixed."

3. On the matter being taken, a prayer was made by learned counsel for the petitioner for deleting the first petitioner, Ramit Lala, from the array of the parties which permission was granted and necessary deletion has been made in the array of the parties.

4. The petition has been entered in the data base as Ramit Lala and three others. Since the name of the first petitioner has been deleted, the petition should now be entered in the data base as Monica Dhawan and two others. This requisite correction be made by the Computer Section in the computer data base.

5. The brief facts of the case are that the petitioners were arrested on 25.04.2023 in connection with RC No. 2162023A0004 under Sections 120B IPC and Sections 7, 8, 9, 10 & 12 of the Prevention of Corruption Act, 1988, P.S. CBI/AC-I/New Delhi.

6. It is submitted that the charge-sheet was filed on 22.06.2023 and thereafter, the case was registered as a miscellaneous case and 26.06.2023 was fixed for hearing on the question of cognizance. On the next date i.e., 26.06.2023, the impugned order was passed. The court did not take cognizance on that date since requisite sanction for prosecuting Ramit Lala, a General Manager of Broadcast Engineering Consultants India Pvt. Ltd., had not been obtained. The next date fixed was 10.07.2023. Simultaneously, the petitioners were remanded to judicial custody under Section 309 Cr.P.C.

7. It is contended that the power under Section 309 Cr.P.C., can be invoked by a Court only after cognizance had been taken and not before that. Under the circumstances, remanding the petitioners to judicial custody is illegal and renders custody of the petitioner illegal.

8. It would be relevant to note that the petitioners in this writ petition are Managing Director, President & Business Head and Director respectively of M/s Fusion Corporate Solutions Pvt. Ltd.

9. The contention of Shri Gyan Prakash, ASGI, appearing for respondents is two fold. He has submitted that upon perusal of the charge-sheet itself, it is clear that the investigation is still not complete. He has referred to Page 68 of the paper book especially paragraph 16.91 of the charge-sheet. The said paragraph reads as follows:-

"16.91-Investigation in respect of certain points with regard to obtaining bribe by Shri Ramit Lala from some other contractors is yet not completed and separate supplementary report will be submitted under Section 173(8) Cr.P.C., on conclusion of investigation. Further investigation in respect of purportedly fake bills submitted by M/s. Fusion Corporate Solutions Pvt. Ltd., to BECIL is also kept open."

10. He has next submitted that the remand order is one under Section 167(2) of the Act as it has been passed when the investigation is still not complete. He further submits that in any case mere mention of Section 309 I.P.C., would not render the order non-est because the Magistrate did possess the power to order judicial remand under Section 167.

11. He has placed reliance upon a decision of Apex Court namely Pradeep Ram Vs. State of Jharkhand and others, AIR 2019 Supreme Court 3193 wherein it has been held in paragraph 65 as follows:-

"65. The special Judge in