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

The Supreme Court observed that a Habeas Corpus petition challenging a remand order can be entertained only if the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, of if it is passed in an absolutely mechanical manner.

Barring such situations, a Habeas Corpus petition will not lie, the bench comprising Justices UU Lalit and KM Joseph observed.  The court said that there is no absolute taboo against an order of remand being challenged in a habeas corpus petition.

These observations were made while considering the appeal filed by Gautam Navlakha seeking default bail in the Bhima Koregaon case. The appeal was against the order passed by the Delhi High Court in the Habeas Corpus petition filed before it.

The court noted that in Manubhai Ratilal Patel v. State of Gujarat (2013) 1 SCC 314 a, it was held that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. It also referred to judgment in Serious Fraud Investigation Office and Ors. vs. Rahul Modi (2019) 5 SCC 266 in which it was observed that the act of directing remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition." 

Taking note of these precedents, the bench held: 

63. Thus, we would hold as follows:  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.

The court also proceeded to examine the question whether, in cases where a High Court is entertaining a Habeas Corpus petition against remand order, what would be the position if it were to modify the order of remand passed by the magistrate

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 the 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.
105. 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 is a matter which will turn on the facts.

Also from the Judgment

Case: Gautam Navlakha vs. National Investigation Agency [CrA 510 OF 2021]
Coram: Justices UU Lalit and KM Joseph
Citation: LL 2021 SC 254

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