Infirmities In Remand Order Affecting Constitutional Safeguards Can’t Be Cured Subsequently: Andhra Pradesh High Court Grants Interim Bail To Accused

While granting interim bail to an accused in a case under Andhra Pradesh Protection of Depositors of Financial Establishments Act, 1999 and Chit Funds Act, the Andhra Pradesh High Court said the infirmities affecting ‘constitutional safeguards’ cannot be cured by the subsequent order of remand by the special court.

The court passed the order in habeas corpus petition which alleged that the Magistrate failed to note the offences alleged and whether the accused was produced within 24 hours of arrest. The division bench of Justice D.V.S.S. Somayajulu and Justice V.Srinivas said that the Magistrate’s failure to note whether 24 hours since arrest had expired or not and the failure to note the provisions of Act No.17 of 1999 are clearly visible.

"In the prima facie opinion of this Court, there are infirmities affecting ‘constitutional safeguards’ which cannot be cured by the subsequent order of remand by the special Court. The error affects a person’s fundamental right and the initial deprivation cannot be cured by a later act. These are inherent and basic rights under Part III which cannot be abridged or taken away even by a law. This is the importance given to the said rights," said the court.

The accused was allegedly produced before the Magistrate at 6:00 p.m. on March 30 although he was arrested on March 29 at 12 noon. The period of 24 hours had expired and the Magistrate failed to take note of it, his counsel argued. The counsel also contended that since he was accused under Act No.17 of 1999 and sections 76 and 79 of the Chit Funds Act, only Special Judge who is of the rank of District Judge can pass a remand order.

The court noted that the perusal of the remand order shows that the Magistrate has noted that the accused is “produced at 6.30 p.m”. However, the counsel for State argued that it is a human error and the accused was in fact produced at 6.30 a.m.

"Even if the time is wrongly recorded as 6.30 p.m. instead of 6.30 a.m. as stated entertaining the remand as urged; when an alleged offence under the Act No.17 of 1999 is committed, it should have been noted. It shows the lack of attention that is required to be bestowed by the Magistrate while passing a remand order," the court said.

It referred to Gautam Navlakha v. NIA, wherein Apex Court held that if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus.

"In addition, if the order is absolutely illegal or suffers with a vice of lack of jurisdiction, the Habeas Corpus petition would lie. This Court has already referred to the provisions of the Act, which clearly state that it is only a designated Court which can deal with cases registered under the said Act. The designated Court/Judge shall be deemed to be a Magistrate also. The learned Magistrate has obviously no jurisdiction to entertain the remand report," said the court.  

The court observed that the Magistrate committed a serious error in granting the remand.

"The accused should have been produced before the Special Court which was admittedly there in the vicinity in the District i.e.Metropolitan Sessions Judge, Vijayawada. No reason is forthcoming for the failure to produce the accused before the Special Court," it added.

Granting interim bail to the accused, the court said there is no averment that the accused is a flight risk. "He is also a professional and an auditor," it noted.

Case Title: Dr.K Narmada v. State of Andhra Pradesh

Citation: 2023 LiveLaw (AP) 24

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