Will Habeas Corpus Petition Lie Against Remand Order: Supreme Court Answers

What is Habeas Corpus and what is Remand

• Habeas Corpus is a writ requiring a detained person to be presented before the court within 24 hours of detention to make sure that the person is not detained unlawfully.
• This writ is of great importance as it guarantees a person’s right to freedom and personal liberty.
• A remand is when a detained person is sent back to the custody pending further investigation or to await a trial.

Background

• The Hon’ble Supreme Court held that the Habeas Corpus petition against remand will only lie if the remand is out of the jurisdiction of the court, if it is mechanical and wholly illegal.
• These remarks were made while bearing in mind the appeal filed by Gautam Navlakha seeking default bail in Bhima Koregaon case. The appeal was contrary to the order passed by the Delhi High Court in the habeas corpus petition filed before it.
• The Hon’ble Court sought help of two precedents in this case - Manubhai Ratilal Patel v/s State of Gujarat (2013) and Serious Fraud Investigation Office and Ors v/s Rahul Modi (2019). To summarize both these cases it can be said that, if the person is in custody by an order of a competent court which prima facie doesn’t appear to be mechanical or illegal and appears within the jurisdiction of the court, the writ of Habeas Corpus cannot be entertained as the act of remand is a judicial function

Court’s Observation

• Thus, in view of these two precedents, the Apex Court held that, “if remand is absolutely illegal or if the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie.”
• It also held that, “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.”
• The bench comprising of Justices U. U. Lalit and K. M. Joseph further held that, excluding such conditions, a habeas corpus writ shall not lie.

Court’s Order

• The court also went on to examine the question whether in cases where a High Court is entertaining a Habeas Corpus petition contrary to remand order, what would be the position if it were to alter the order of remand delivered by the Magistrate?
• In answer to which it held that, “take a case where the police custody is ordered by the magistrate by an interim order of the High Court. Let us take it that the High Court provides for judicial custody. It is done after the accused undergoes police custody for 5 days. However, the writ petition is 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 the records also finds that the petitioner should only be continued in the modified form of remand, the custody, which is undergone under an order of court being also during the investigation which the investigation is also not stayed, ought to be counted. Now, though the Cr.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’s a matter which will turn on the facts.”

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