Writ Of Habeas Corpus Not Maintainable If Police Custody Is Pursuant To Judicial Order, Reiterates SC [Read Judgment]

“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.”

The Supreme Court has reiterated that no writ of habeas corpus could be issued in respect of a person who was in police custody in connection with a criminal case under investigation pursuant to a remand order by Magistrate.

The state of Maharashtra had assailed a high court order that had allowed the plea of a wife of a man who was in police custody after he was remanded by the magistrate. The high court had made some scathing observations in the judgment, which was also sought to expunged (in State of Maharashtra vs. Tasneem Rizwan Siddiquee).

Referring to judgments in Saurabh Kumar through his father Vs. Jailor, Koneila, Jail and Manubhai Ratilal Patel Vs. State of Gujarat and Ors., the bench comprising Chief Justice of India Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud observed: “In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was 1 (2014) 13 SCC 436 2 (2013) 1 SCC 314 11 filed by the respondent on 18th/19th March, 2018 and decided by the High Court on 21st March, 2018 her husband Rizwan Alam Siddique was in police custody pursuant to an order passed   by   the   Magistrate   granting   his   police   custody   in connection with FIR No.I-31 vide order dated 17th March, 2018 and which police remand was to enure till 23rd March, 2018. 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 the investigation of a criminal case.”

The bench said 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 till March 23, 2018, and more particularly for reasons mentioned in that order of the Magistrate. The bench also expunged certain observations made against the Deputy Commissioner of Police.

Allowing the appeal, the bench said: “The High Court, in our opinion, 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. As aforesaid, the DCP has 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.”

Read the Judgment Here