Manohar Lal vs Hon'Ble Punjab And Haryana High Court ...
2024 Latest Caselaw 16472 P&H

Punjab-Haryana High Court

Manohar Lal vs Hon'Ble Punjab And Haryana High Court ... on 9 September, 2024

                                        Neutral Citation No:=2024:PHHC:120985




CRWP-8774-2024                                                    1

           IN THE HIGH COURT OF PUNJAB AND HARYANA
                        AT CHANDIGARH

144                              CRWP-8774-2024
                                 Date of Decision : September 09, 2024

MANOHAR LAL
                                                                      -Petitioner

                                       V/S

HON'BLE PUNJAB AND HARYANA HIGH COURT AND ORS.

                                                                 -Respondents

CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Present:     Mr. Vineet Kumar Jakhar, Advocate
             for the petitioner.

                                 ***

KULDEEP TIWARI, J. (ORAL)

1. Through the instant writ of habeas corpus, as cast under Article 226

of the Constitution of India, read with Section 3(2) of Judges (Protection) Act,

1985, the petitioner, who is suffering incarceration in Model Jail, Chandigarh, in

FIR No.51 dated 21.05.2024, under Sections 406, 420, 120-B of the IPC, regis-

tered at P.S. Maloya, in consonance with an order passed by a court of competent

jurisdiction, and, whose regular bail application has also been dismissed by the

learned trial Court concerned, seeks issuance of directions upon the respondents

to release him from illegal detention/incarceration.

2. The prime argument canvassed by the petitioner, for securing the

hereinabove extracted relief, ensues from blatant violations being made of the ex-

position(s) of law, as became laid down in the hereinafter enumerated verdicts,

while ordering petitioner's judicial remand.

"Arnesh Kumar v. State of Bihar", (2014) 8 SCC 273 "Satender Kumar Antil v. Central Bureau of Investigation",

1 of 7

Neutral Citation No:=2024:PHHC:120985

(2022) 10 SCC 51 "Daggar Malhotra v. State of Haryana", CRM-W No.1789 of 2023 in/and CRWP No.11962 of 2023 Notification dated 22.09.2023 (No. 159 Gaz. II(17)), issued by this Court on administrative side.

3. At the outset itself, this Court posed a specific query to the learned

counsel for the petitioner regarding maintainability of the instant petition, espe-

cially when the petitioner is in judicial custody, to which the latter responded

that, since the investigating officer had, at the time of petitioner's arrest, did not

adhere to the provisions of Section 41-A of the Cr.P.C., therefore, the basic order

of granting police remand becomes tainted with illegality and as a natural corol-

lary thereof, all the subsequent orders of remand also become rendered void ab

initio. Consequently, the custody of the petitioner is, in fact, illegal detention.

4. This Court has considered the submission(s) made by the learned

counsel for the petitioner, but, to the considered mind of this Court, the same do

not have any merit. The reason for forming this inference stems from the factum

that, the precise issue of maintainability, as involved in the case in hand is no

more res integra, inasmuch as, the issue regarding maintainability of a writ of

habeas corpus against an order of judicial remand has already been examined and

answered in negative by the Hon'ble Supreme Court, in a catena of judgments.

5. In the verdict rendered by the Hon'ble Supreme Court in case titled

as "Col. Dr. B. Ramachandra Rao V/s State of Orisssa and others", Writ Petn.

No. 601 of 1970 and Transfer Petn. No. 12 of 1971, Decided on: 11.08.1971, it

has been held that a writ of habeas corpus cannot be granted to a person, in case

he is undergoing the sentence of imprisonment imposed on him by a competent

court. The relevant paragraph of this verdict is reproduced hereunder:-

"6. As admitted by both sides the petitioner was sentenced to imprison-

2 of 7

Neutral Citation No:=2024:PHHC:120985

ment on conviction by the Third Additional Sessions Judge, Secunder- abad in October, 1965. Unfortunately neither side has been able to in- form us as to whether that sentence has expired or is still running. The jail authorities at Bhubaneshwar, we have little doubt, must have infor- mation whether or not the petitioner, when brought there, was under- going a sentence of imprisonment and how much sentence remained to be undergone, and the petitioner also, in our opinion, must be pre- sumed to be aware of the sentence imposed on him. We need only add that in case the petitioner is undergoing the sentence of imprison- ment imposed on him by competent court then too writ of habeas cor- pus cannot be granted. This position is well settled."

6. In "Kanu Sanyal V/s District Magistrate, Darjeeling and others",

AIR 1974 Supreme Court 510, the principle laid down is that, any infirmity in the

detention of a person at the initial stage cannot invalidate the subsequent deten-

tion and the same has to be judged on its own merits.

7. Gainful reference can also be made to the Constitution Bench deci-

sion in "Sanjay Dutt V/s State through C.B.I., Bombay (II)", 1994(3) RCR

(Criminal) 684 : (1994) 5 SCC 410, wherein, it has been opined thus:

"It is settled by Constitution Bench decisions that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of re- mand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid or- der."

8. Apart from the exposition of law, as became propounded in Kanu

Sanyal's and Sanjay Dutt's case (supra), becoming reiterated by the Hon'ble

Supreme Court in its verdict rendered in "Manubhai Ratilal Patel Tr. Ushaben

V/s State of Gujarat and others", it has further been held that a writ of habeas

corpus is not to be entertained when a person is committed to judicial custody or

police custody by the competent court. The relevant paragraph of Manubhai

Ratilal Patel Tr. Ushaben's verdict is reproduced hereinafter:-

3 of 7

Neutral Citation No:=2024:PHHC:120985

"32. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of order of stay. It is also mani-

fest that the order of remand was passed by the learned Magistrate af- ter considering the allegations in the FIR but not in a routine or me- chanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have bear- ing on the action of the investigating agency. The order of remand which is a judicial act, as we perceive, does not suffer from any infir- mity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order of remand cannot be regarded as untenable in law. It is well accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the compe- tent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly il- legal. As has been stated in the cases of B.R. Rao (supra) and Kanu Sanyal (supra), the court is required to scrutinise the legality or other- wise of the order of detention which has been passed. Unless the court is satisfied that a person has been committed to jail custody by virtue of an order that suffers from the vice of lack of jurisdiction or absolute il- legality, a writ of habeas corpus cannot be granted. It is apposite to note that the investigation, as has been dealt with in various authorities of this Court, is neither an inquiry nor trial. It is within the exclusive domain of the police to investigate and is independent of any control by the Magistrate. The sphere of activity is clear cut and well demarcated. Thus viewed, we do not perceive any error in the order passed by the High Court refusing to grant a writ of habeas corpus as the detention by virtue of the judicial order passed by the Magistrate remanding the accused to custody is valid in law."

9. A similar view has been echoed by the Hon'ble Supreme Court in

case titled as "State of Maharashtra and ors. V/s Tasneem Rizwan Siddiquee",

4 of 7

Neutral Citation No:=2024:PHHC:120985

Criminal Appeal No.1124 of 2018 (Arising out of SLP(Crl.) No.2846 of 2018),

Decided on: 05.09.2018, wherein, a specific issue was under consideration as to

whether a writ of habeas corpus could be maintained in respect of a person, who

was in police custody in connection with a criminal case under investigation, pur-

suant to an order of remand passed by the court of competent jurisdiction. The

Hon'ble Supreme Court, while relying upon Manubhai Ratilal Patel Tr.

Ushaben's case (supra), answered this issue in negative. The relevant paragraph

of Tasneem Rizwan Siddiquee's case is reproduced hereunder:-

"9. The question as to whether a writ of habeas corpus could be main- tained in respect of a person who is in police custody pursuant to a re- mand order passed by the jurisdictional Magistrate in connection with the offence under investigation, this issue has been considered in the case of Saurabh Kumar through his father v. Jailor, Koneila Jail and Anr., 2014(3) RCR (Criminal) 856 : (2014) 13 SCC 436, and Manub- hai Ratilal Patel v. State of Gujarat and Ors., 2012(4) RCR (Crimi- nal) 655 : (2013) 1 SCC 314. It is no more res integra. In the present case, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18th/19th March, 2018 and de-

cided 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.l- 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 contin- ued 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. Resultantly, no writ of habeas corpus could be issued."

10. Not only this, the issue raised by the learned counsel for the peti-

tioner herein has also been considered by the Hon'ble Supreme Court in case ti-

5 of 7

Neutral Citation No:=2024:PHHC:120985

tled as "V. Senthil Balaji V/s. The State represented by Deputy Director and

Ors.", wherein, it has been held that when an arrestee is forwarded to jurisdic-

tional Magistrate under Section 19(3) of PMLA, 2002, then no writ of habeas

corpus would lie and any plea of illegal arrest is to be made before such Magis-

trate, as the custody becomes judicial. The relevant paragraphs of the verdict ren-

dered in V. Senthil Balaji's case are reproduced hereinafter:-

"88. Summation of Law:

i. When an arrestee is forwarded to the jurisdictional Magistrate under Section 19(3) of the PMLA, 2002 no writ of Habeas Corpus would lie. Any plea of illegal arrest is to be made before such Magistrate since custody becomes judicial.

ii. Any non-compliance of the mandate of Section 19 of the PMLA, 2002 would enure to the benefit of the person arrested. For such non- compliance, the Competent Court shall have the power to initiate ac- tion under Section 62 of the PMLA, 2002.

iii. An order of remand has to be challenged only before a higher fo- rum as provided under the CrPC, 1973 when it depicts a due applica- tion of mind both on merit and compliance of section 167(2) of the CrPC, 1973 read with Section 19 of the PMLA 2002.

XX XX XX"

11. On the touchstone of the hereinabove discussed judicial precedents,

this Court has no hesitation to hold that the instant writ of habeas corpus, thereby

seeking release of the petitioner, who is in judicial custody by virtue of an order

passed by a court of competent jurisdiction, and, whose regular bail application

has also been dismissed by the learned trial Court concerned, is not maintainable.

12. Although certain other issues have also been canvassed by the peti-

tioner's counsel in the instant writ of habeas corpus, which however do not be-

come argued by him during the course of arguments, yet to the considered mind

of this Court, the said issues cannot be adjudicated by this Court in the instant

6 of 7

Neutral Citation No:=2024:PHHC:120985

proceedings.

13. Consequently, the instant criminal writ petition is dismissed,

however, with liberty to the petitioner to raise all such issues, as canvassed in the

instant petition, before the court of competent jurisdiction at the time of seeking

relief of regular bail.

                                                       (KULDEEP TIWARI)
September 09, 2024                                         JUDGE
devinder
                Whether speaking/reasoned :                   Yes/No
                Whether Reportable        :                   Yes/No




                                        7 of 7