Habeas Corpus Plea Not Maintainable Against Arrest & Remand Once Cognizance Taken; Accused Must Seek Regular Bail: Allahabad HC

A bench of Justice Siddharth and Justice Vinai Kumar Dwivedi reasoned that an initial remand order remains operative only during the investigation stage, as it naturally loses its significance once cognizance is taken, as the order of cognisance stands on a "higher judicial footing".

It added that once cognizance is taken, the custody of the accused is effectively converted and the trial court is well within its jurisdiction to lawfully issue subsequent warrants under Sections 209 or 309 of the CrPC .

Therefore, the bench observed that it is this subsequent judicial order that becomes relevant, not the initial order of remand.

"The filing of a writ petition for habeas corpus before the High Court, after passing of the judicial order of remand and subsequent orders taking cognizance of the offence, committal of the case and framing of charge cannot be justified, inasmuch as the initial remand order passed by the Magistrate becomes redundant at these stages...the order of remand may be assailed in proceedings for under Article 226 only till the stage when cognizance has not been taken by the competent court on the charge-sheet", the division bench observed.

The Bench further ruled that at the post-cognizance stage, the accused must resort to the statutory remedy of bail, including on grounds of violation of Articles 21 and 22(1) of the Constitution.

The case in brief

The bench made these observations while dealing with a habeas corpus plea pertaining to a murder and dowry death accused who was arrested more than two years ago.

The petitioner-accused approached the Court at a stage when the cross-examination of a vital prosecution witness was underway in the Sessions Trial.

It was argued that his initial arrest was void ab initio because the mandatory grounds of arrest were never communicated to him in writing. Hence, it was prayed that his arrest be declared illegal and that he be set at liberty.

The State counsel, on the other hand, argued that the habeas corpus petition was not maintainable as the corpus was not in illegal detention.

It was contended that the initial remand had become 'inoperative' once the magistrate took cognizance of the chargesheet and passed an order for judicial remand of the accused u/s 209 of the CrPC.

High Court's observations

Having heard both parties, the bench noted that there were two issues before the court which required attention:-

• Whether it is open for the person arrested / detained to prefer a habeas corpus petition on the ground of violation of Article 21 and 22 of the Constitution of India any time after his remand, till the conclusion of trial, at any stage of investigation and trial.
• Whether there is no time line fixed for filing a habeas corpus petition before the court.

To answer these queries, the bench examined two sets of judgments of the Supreme Court: one set consisting of old law laid down in cases like of Sanjay Dutt (1994); A.K. Gopalan and Another (1965); K. Ramachandra Rao (1971); Kanu Sanyal (1973) and few others, and a second set of recent judgment of the Apex Court concerning the maintainability of habeas corpus at any stage, including the widely cited rulings in Vihan Kumar; Prabir Purkayastha; Pankaj Bansal; Mihir Rajesh Shah.

The bench noted that the first set of rulings provides that when dealing with a petition for habeas corpus, the court must look at whether the detention is legal on the date of return of the rule (the date of the hearing) and not with reference to the initiation of the proceedings or the initial arrest.

As per these case laws, the Court noted, any initial infirmity in custody stands replaced or cured once a competent court passes subsequent valid judicial orders, such as an order of remand under Section 309 of the CrPC or an order taking cognizance.

"The court is to see the validity of detention on the date the application is made, if nothing has intervened between the date of application and date of hearing of the same. If the detention order made initially is replaced by subsequent detention order, the first detention order goes out of realm of consideration…The initial detention cannot be held to be illegal when the subsequent stages of investigation / trial have passed", the bench observed, considering the law laid down under the first set of judgments.

Conversely, the recent set of judgments, the bench noted, takes a completely different path by not placing any fetters on a person's right to file a habeas corpus petition before the court at any stage of the investigation/trial, asserting that the initial defect in remand is incurable.

Examining both sets of judgments, the bench observed that the recent string of judgments has opened a "Pandora's box" and "flood gates" for the persons in detention to approach the court at any stage of investigation or trial to challenge their initial remand order.

The Court noted that this has created a 'chaotic' situation in which accused persons are filing habeas corpus petitions even after their bail applications have been rejected by the trial court, the High Court, and even the Supreme Court.

"If it is permitted to continue the accused will file habeas corpus petitions before this court at will asserting their fundamental rights under Article 22(1) of the Constitution of India irrespective of the stage of investigation / trial," the HC remarked.

Importantly, the bench categorically ruled that the recent set of judgments appears to be "hit by the principles of stare decisis" for failing to consider earlier decisions of the Apex Court on the issue of maintainability of the "Writ of Habeas Corpus" and hence, do not constitute binding precedents.

In this regard, the bench referred to the 1955 judgment of the Supreme Court in Bengal Immunity Co. Ltd. vs State of Bihar, wherein it was held that the Top Court should not depart from its previous decision merely because a view contrary to the one taken therein appears preferable.

"The object of Article 141 is that the decisions of the Supreme Court on questions of law should settle the controversy and should be followed as law by all courts. If such decisions are allowed to be reopened merely because a different view appears to be a better one, then the very purpose for which Article 141 was enacted would be defeated," the Court referenced.

The Bench observed that allowing settled law to be reopened based on a mere preference of a later Bench severely damages the prestige and value of judicial pronouncements.

In view of this, the bench came up with the following conclusions:

• A habeas corpus writ petition can be preferred by an accused before the court at the earliest if his initial remand is illegal and, consequently, his detention is illegal.
• The filing of habeas corpus petition shall not be affected by rejection of bail application of the accused by the trial court only.
• However, rejection of bail application of accused by High Court or the Supreme Court, would be a bar to entertainment of habeas corpus plea since the bail application had been considered by the High Court or the Supreme Court and it would not be proper for another coordinate Bench of the High Court or the Supreme Court, where the bail application was rejected, to entertain a habeas corpus writ petition by another Bench of the same court. It will amount to appeal / review of the judgment passed by the Bench deciding bail application of the accused.
• Once the charge sheet is submitted against an accused under Section 173(2) Cr.P.C / 154(2) B.N.S.S and judicial order of cognizance is passed thereon by the competent court, the right of the accused to prefer habeas corpus writ petition on the ground that the initial judicial order of remand under Section 167(2) Cr.P.C / 187(2) B.N.S.S passed by the Magistrate was illegal would not be maintainable. This is because, after the passing of the second judicial order taking cognizance of the offence on the charge sheet, it is the order of cognizance that would become relevant and not the initial order of remand. The remedy of assailing such an order of cognizance is provided under the statute and filing of habeas corpus petition would not be permissible.
• After the cognizance is taken on the charge sheet submitted by the investigating officer, the challenge to arrest of accused can be made on the grounds of violation of Article 21 and 22(1) of the Constitution of India by resorting to statutory remedy of bail provided under the statute.
• The remedy of filing habeas corpus petition will also not be available to an accused after the order of committal under Section 209 Cr.P.C. / 232 B.N.S.S or remand by the trial court under Section 309 Cr.P.C. / 346 B.N.S.S.
• Even after framing of charge as per Section 228 Cr.P.C. / 240 Cr.P.C by the court, which is also a judicial order amenable to statutory challenge, the remedy of habeas corpus cannot be availed by an accused.