If the accused is continuously in custody, even if a production warrant is issued for a future date, the custody is considered to be in continuity, and it is not deemed illegal during the interim period- Delhi HC
Title: Nitin Garg versus UOI
+ W.P.(CRL) 3641/2023, CRL. M.A.33843/2023
Decided on: December 19, 2023
CORAM: HON’BLE MR. JUSTICE SURESH KUMAR KAIT,
HON’BLE MS. JUSTICE SHALINDER KAUR
Facts:
The petitioners have filed a petition seeking the issuance of a writ of habeas corpus or any other appropriate direction to the respondents. They claim that their fundamental rights guaranteed under Articles 14, 21, and 22 of the Constitution of India have been violated by the respondents. The petitioners argue that their continued illegal detention is in violation of Section 167 of the Code of Criminal Procedure. 1973 (Cr.P.C) and other provisions of Cr.P.C.
Laws Involved:
Section 167 of the Code of Criminal Procedure. 1973 (Cr.P.C)- Procedure when investigation cannot be completed in twenty-four hours.
Section 309 of the Code of Criminal Procedure. 1973 (Cr.P.C)- Power to postpone or adjourn proceedings.
Contentions:
The petitioners argue that their detention is patently illegal as there is no judicial order remanding them to judicial custody as required by Section 167 of Cr.P.C. They seek a direction from the court to produce them and release them from illegal detention.
The petitioners further argue that the ED did not file any application seeking an extension of judicial custody.
They also contend that the learned ASJ-04 did not take cognizance of the prosecution complaint and failed to remand the petitioners to judicial custody under Section 309 of Cr.P.C. Therefore, the petitioners’ custody since 07.12.2023 is not backed by a judicial order and is patently illegal.
The respondents argue that the petitioners’ custody is lawful as they are in judicial custody and not in the custody of the ED.
They also argue that the requirement of passing fresh remand orders for remanding an accused does not apply to the Court of Sessions.
Issues:
- Whether the petitioners’ fundamental rights have been violated by the respondents?
- Whether the petitioners’ continued illegal detention is in violation of Section 167 of Cr.P.C?
- Whether the petitioners’ custody is lawful or illegal?
- Whether the remand orders issued by the learned ASJ-04 are valid?
Courts Judgement:
The court notes that a writ of habeas corpus is an extraordinary remedy for illegal confinement. They observed that , an order of remand by a competent court is essentially a judicial function and cannot be challenged by way of writ of habeas corpus unless and until the remand order lacks jurisdiction or is absolutely illegal resulting in unlawful “custody”. It is true that an order of remand can be challenged in a Habeas Corpus petition if such an order is passed in an absolutely mechanical or casual manner. The court observed that if an accused is not produced in court on a scheduled hearing date and a production warrant is subsequently issued, there is a break in the continuity of the accused’s custody. During this break period, the custody may be considered illegal. However, if the accused is continuously in custody, even if a production warrant is issued for a future date, the custody is considered to be in continuity, and it is not deemed illegal during the interim period.
Conclusion:
The court dismisses the writ petitions and any pending applications.
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Written by- Aditi