Bombay High Court
Mohamad Ahmad Yasin Mansuri
Versus
State of Maharashtra
Decided On:

Headnote:Article 20 (3)-See Criminal Procedure Code, 1913, Sections 51, 73, 161,204 and 309.

       Sections 57,73, 167, 204 and 309-Constitution of India, Article 20(3) -Sections 57 and 73- Intendment of-Scope of.

       Accused persons detention and remand under Sections 167 and 309 - Discretion conferred either to grant police custody or judicial custody by Section 167 but in no circumstances accused person can be remanded to police custody under Section 309-Seclion 309 has application even where investigation is not over-Article 20 (3) hits custodial interrogation by police.

       Section 19 (1) - Constitution of India, Articles 226 and 227 - Custody- Order granting it an interlocutory order-Remedy of appeal to Supreme Court not bar to entertain writ petition - Efficacious alternate remedy.

       An order granting or refusing to grant hail, is an interlocutory order, can no longer be disputed. If this be the case, the conditions of the grant of bail or the conditions of custody will also be of an interlocutory nature. Hence, no appeal will lie to the Supreme Court under sub-section (1) of Section 19 of the TADA Act. Hence, availability of an alternate efficacious remedy will not be a bar for entertaining the present petition.

       Section 19 (2) - Constitution of India, Articles 226 and 227-Appeal or revision-Bar in respect of cannot come in way of High Court in exercising its writ jurisdiction-Order of designated Court to remand accused to police custody after taking cognizance of offence being without jurisdiction liable to be quashed.

       No power is conferred for providing for Police custody after cognizance of an offence is taken. In the Circumstances, it is held that the order passed by the Designated Court granting police custody of the petitioner is without jurisdiction and is liable to be quashed. The powers under Articles 226 and 227 of the Constitution of India cannot be exercised freely and without fetters. These are high prerogatives and have naturally to he exercise springly and in rare and deserving cases only. These powers are not the powers of a Court of an appeal or revision but are extraordinary powers conferred by the Constitution. These have naturally to be exercised with and deserving cases. Whether in a given set of facts the power should be exercised or not would naturally depend on the facts and circumstances of each particular case. No hard and fast rule can be laid down. In the instant case, it is found that the impugned order is without jurisdiction. Hence, having regard to the above facts and all the facts and circumstances of the case. It is found that this a fit case to exercise our powers under Articles 226 and 227 of the Constitution.

       For Citation : 1994 Cr LJ 1854