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

In a significant verdict passed last week, the Allahabad High Court has held that once a competent Court takes cognizance on the charge sheet, an accused cannot maintain a habeas corpus petition challenging the legality of his arrest or the initial remand order passed under Section 167(2) CrPC/187(2) BNSS. 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...

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

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

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