ED’s Timely Complaint Keeps Accused in Custody Despite Cognizance Order Being Set Aside: Delhi HC Holds

In brief

The question

Whether setting aside the cognizance order rendered the petitioner’s continued remand unlawful, entitling him to release without seeking bail.

The court held

The Court held that the challenge to continued remand could not be reopened and that the setting aside of cognizance did not make the petitioner’s further remand unlawful, because the ED complaint had been filed within the statutory period.

It also directed

It dismissed the writ petition and pending applications, with no order as to costs.

01Facts

The petitioner was arrested in an NIA case in March 2024 and later formally arrested by the Directorate of Enforcement (ED) in October 2024 in connection with an ECIR.

pp. 2–3 · ¶ 2–4

The Special Court took cognizance of the ED complaint on 18 December 2024.

pp. 4–8 · ¶ 7

In a separate challenge, the High Court set aside that cognizance order for failure to provide a pre-cognizance hearing, but held that the petitioner’s custody was not thereby unlawful and that he could seek bail in accordance with law.

pp. 4–8 · ¶ 7

The Supreme Court dismissed the petitioner’s special leave petition while clarifying that he could apply for regular bail.

p. 9 · ¶ 8–9

The petitioner subsequently argued that, because cognizance had been set aside and the statutory remand period had expired, there was no authority to continue his custody. The High Court rejected that challenge.

pp. 10–12 · ¶ 10–16

02Issues

i.Whether setting aside the cognizance order rendered the petitioner’s continued remand unlawful, entitling him to release without seeking bail.

pp. 10–12 · ¶ 14–16 · pp. 22–23 · ¶ 20

ii.Whether the petitioner could reopen the legality of his remand after the earlier High Court decision and the Supreme Court’s order.

p. 12 · ¶ 18

03Law Applied

Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), corresponding to Section 167 CrPC, governs remand during investigation and permits default bail if the final report or complaint is not filed within the prescribed period; the filing of the report within that period, rather than the taking of cognizance, is material to that right.

pp. 12–13 · ¶ 18–19 · pp. 22–23 · ¶ 20

Relying on Suresh Kumar Bhikamchand Jain v. State of Maharashtra, (2013) 3 SCC 77, and Judgebir Singh v. National Investigation Agency, (2023) 17 SCC 48, the Court applied the principle that timely filing of the charge-sheet or complaint satisfies the statutory requirement, and that custody continues under the court’s authority pending cognizance.

pp. 12–13 · ¶ 18–19 · pp. 22–23 · ¶ 20

The Court also treated the prior High Court judgment and the Supreme Court’s order reserving liberty to seek regular bail as foreclosing a renewed challenge to remand.

pp. 12–13 · ¶ 18–19 · pp. 22–23 · ¶ 20

Provisions in the judgment · 28 · Linked ones open on LawLens

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 187 Section 346 Section 223 Section 197 Section 480 Section 58

Indian Penal Code, 1860 12 provisions

Section 122 Section 409 Section 411 Section 406 Section 408 Section 465 Section 466 Section 468 Section 471 Section 177 Section 109 Section 34

Unlawful Activities (Prevention) Act, 1967 Section 18 Section 39

Prevention of Money-Laundering Act, 2002 Section 44 Section 65 Section 45

Code of Criminal Procedure, 1973 Section 167 Section 309 Section 173 Section 482

Prevention of Corruption Act, 1988 Section 13

04Reasoning

The Court first held that the petitioner was attempting to reopen an issue already addressed in the earlier High Court judgment, which the Supreme Court had declined to disturb while expressly leaving him to pursue regular bail.

p. 12 · ¶ 18

On the merits, it relied on Judgebir Singh and Suresh Kumar Bhikamchand Jain to distinguish the filing of the prosecution complaint from the subsequent taking of cognizance.

pp. 13–22 · ¶ 19–20

Since the ED complaint had been filed within the period prescribed by Section 187 BNSS, setting aside the cognizance order for want of a pre-cognizance hearing did not, by itself, create a right to release or invalidate further remand.

pp. 13–22 · ¶ 19–20

The appropriate remedy was an application for bail on merits.

p. 23 · ¶ 20