Point of law: Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law.

ORDER :

R. DEVDAS, J.

After accepting notice on behalf of the respondents, learned Additional Advocate General had raised a preliminary objection that this writ petition in the nature of habeas corpus is not maintainable for the reason that the prayer in the writ petition is to quash the detention order dated 02.03.2023 at Annexure-K passed by respondent No.1-State of Karnataka, Home Administration Department, represented by its Under Secretary. In the said order dated 02.03.2023, the State Government had confirmed the order of detention passed by the Deputy Commissioner, Gadag District on 30.01.2023. This court had requested the learned counsel for the petitioner and the learned AAG to assist the court to consider the preliminary objection raised at the hands of the learned AAG.

2. Learned AAG has drawn the attention of this court to a recent decision of the Hon’ble Supreme Court in the case of Home Secretary (Prison) and Others vs H.Nilofer Nisha reported in (2020) 14 SCC 161. We also found that a similar view was taken by the Hon’ble Supreme Court in another recent decision in the case of Serious Fraud Investigation office vs. Rahul Modi and Another reported in (2019) 5 SCC 266.

3. We find that in the case of Serious Fraud Investigation Office (supra), subsequent to filing of the habeas corpus petition, the Judicial Magistrate had passed an order on 11.12.2019 remanding the respondent therein to judicial custody. That was a case where respondent was taken into custody under the provisions of Section 212(1)(c) of the Companies Act, 2013 and Section 43(2) and (3)(c)(i) of the Limited Liability Partnership Act, 2008 by Officers of Serious Fraud Investigation Office (SFIO). Various judgments including the case of Basanta Chandra Ghose vs. King Emperor reported in 1945 SCC OnLine FC 3; A.K.Gopalan vs. Union of India reported in (1966) 2 SCR 427 and the case of Sanjay Dutt vs. State reported in (1994) 5 SCC 410 were considered by the Hon’ble Supreme Court. It was noticed that in Basanta Chandra Ghose (supra), it was held that, if at any time before the court directs the release of the detenue, a valid order directing his detention is produced, the court cannot direct his release merely on the ground that at some prior stage there was no valid cause for detention. In A.K.Gopalan (supra), it was held that in dealing with a petition for habeas corpus, the court is to see whether the detention on the date on which the application is made to the court is legal, if nothing more has intervened between the date of the application and the date of the hearing. In the case of B.Ramachandra Rao vs State of Orissa reported in (1972) 3 SCC 256, the Hon’ble Supreme Court held that in habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. The Hon’ble Supreme therefore held that three views were taken by the Supreme Court at different times. However, in view of the respondent therein filing another writ petition contending that with the expiry of period within which the investigation had to be completed in terms of order dated 20.06.2018, all further proceedings including the arrest of the respondents were illegal and without any authority of law, and such contention was upheld, their Lordships proceeded to hold as under:

“But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr Justice Dua in B.Ramachandra Rao v. State of Orissa, “concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus”. Now the writ petition in the present case was filed on 6-1-1973 and on that date the petitioner was in dete