The Bombay High Court has issued a writ of habeas corpus ordering the release of a man who has been in judicial custody for over the prescribed maximum period of 60 days.
The bench of Justice SC Dharmadhikari and Justice Bharati Dangre held that detention beyond 60 days was in violation of Section 167(2) of the Code of Criminal Procedure, 1973, and of Article 21 of the Constitution.
The petition was filed by one Rakumar Bhagchand Jain who is the father of detenu Rohit, who was detained on September 19, 2017, in relation to a case registered by the Central Bureau of Investigation, Economic Offences Wing, and was produced before the Additional Chief Metropolitan Magistrate at Esplanade Court, Mumbai.
At first, custody was granted till September 28, and then it was extended to October 12, 2017, and later to November 9, 2017.
Thereafter, another remand application was filed by the CBI seeking custody till November 23, which was granted. The total period of detention now exceeded the maximum period of 60 days.
The petitioner argued that his son had applied for bail on November 20 but the plea was rejected on the ground that during the course of investigation prosecution had invoked sections 465, 467, 468 and 471 of the Indian Penal Code and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, in the same CBI case. On that basis, it was argued by the CBI that the period for filing the charge-sheet is 90 days instead of 60 days.
After rejection of bail, the petitioner’s son inquired as to why there was no record of any remand application or any other request by the prosecution seeking extension in custody after provisions of the Prevention of Corruption Act, 1988, were added.
Law and Final Judgment
Unless investigation in a case relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years, under Section 167 (2), a magistrate may authorise detention of an accused to a maximum of 60 days.
It was argued by petitioner’s counsel Pankaj Jain that since the detention was not permissible in law, the court could issue the writ of habeas corpus.
After considering all the submissions and facts at hand, the court said: “In the circumstances, we are constrained to hold that the detention beyond the period of 60 days is in clear violation f Section 167(2) of the Code of Criminal Procedure, 1973. Such illegal detention in custody cannot be sustained as it is violative of the right to life and liberty guaranteed by Article 21 of the Constitution of India. Consequently, on the undisputed facts and the detention being illegal, writ of habeas corpus can be issued. We accordingly issue such writ.”