Writs – Habeas Corpus – Husband of respondent was arrested by police in connection to an offence under investigation – Thereafter, Magistrate remanded him to police custody – Whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with offence under investigation – High Court held that husband of respondent was illegally and unlawfully detained by the police and made scathing observations against the police officials – On appeal, held: In instant case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent in the High Court, husband of respondent during this time was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR – Further, writ petition was filed without challenging the order of the Magistrate – It was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case – No writ of habeas corpus could have been issued – Thus, High Court erred by entering upon the merits of the arrest in absence of any challenge to the judicial order passed by the Magistrate – Furthermore, the High Court wrongly made scathing observations against the police officials without giving them opportunity to offer explanation on affidavit – Accordingly, order of the High Court set aside – Penal Code, 1860 – ss.420, 201, 171, 467, 468 and 120-B – Code of Criminal Procedure, 1973 – ss.160 and 41-A – Information Technology Act, 2000 – ss.66, 72 and 72(a) – Indian Telegraphs Act, 1885 – s.26.
Allowing the appeal, the Court
HELD: 1. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent and subsequently, decided by the High Court her husband was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued. [Para 9][381-H; 382-A-C]
2. The impugned order of the High Court was passed notwithstanding the judicial order of remand was still in operation. The High Court, should not have taken umbrage to the submission made on behalf of the Deputy Commissioner of Police that the respondent’s husband could be released if so directed by the Court. The DCP had no other option but to make such a submission. For, he could not have voluntarily released the accused who was in police custody pursuant to a judicial order in force. The High Court ought not to have made scathing observations even against the Investigating Officer without giving him opportunity to offer his explanation on affidavit. [Para 10] [382-F-G]
3. Since no writ of habeas corpus could be issued in the fact situation of the present case, the High Court should have been loath to enter upon the merits of the arrest in absence of any challenge to the judicial order passed by the Magistrate granting police custody and more particularly for reasons mentioned in that order of the Magistrate. In a somewhat similar situation, this Court in State represented by Inspector of Police and Ors. v. N.M.T. Joy Immaculate deprecated passing of disparaging and strong remarks by the High Court against the Investigating Officer and about the investigation done by them. Accordingly, the observations made in paragraphs 4 to 6 of the impugned judgment against the concerned police officials in the facts of the present case are expunged. [Para 11] [382-H; 383-A-C] Saurabh Kumar through his father v. Jailor, Koneila Jail and Anr. (2014) 13 SCC 436 : [2014] 8 SCR
909 ; Manubhai Ratilal Patel v. State of Gujarat and Ors. (2013) 1 SCC 314 : [2012] 8 SCR 993 ; State represented by Inspector of Police and Ors. v. N.M.T. Joy Immaculate (2004) 5 SCC 729 : [2004] 2 Suppl. SCR 71 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.