Writ of Habeas Corpus would lie in order of remand also

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Writ of Habeas Corpus would lie in order of remand also

05 Jun 2021 05:06 pm

12th May 2021 Supreme Court

Justices: UU Lalit and KM Joseph

It was held that if the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie.

There is one more fact which had been taken into consideration by the Hon’ble Court i.e.- Where a High Court is entertaining a Habeas Corpus petition against the remand order, in such a case what will be the position if it were to modify the order of remand passed by the Magistrate?

In such a scenario, the Court said- Take a case where police custody is ordered by the Magistrate. By an interim order of the High Court let us take it the High Court provides for judicial custody. It is done after the accused undergoes police custody for 5 days. Finally, the writ petition is however dismissed.

In such a case where there is no stay of investigation and in fact even the police custody was obtained and thereafter the High Court after looking into records also find that the petitioner should only be continued in the modified form of remand, the custody, which is undergone under an order of the court being also ‘during the investigation’ which the investigation is also not stayed, ought to be counted.

Now though the C.R.P.C will not apply to a writ petition, what is required to include custody under section 167 is that the detention brought about by the court ordering it during the investigation into an offence. It is a matter which will turn on the facts.

Gautam Navlakha vs. National Investigation Agency

Cr A 510 of 2021