By these writ petitions of habeas corpus, a prayer is made for release of the petitioner-Rahul Pareek alleging his detention and custody to be illegal.

Learned counsel submits that these writ petitions are involving various questions of law and also focus working of the police and the courts act in derogation to the provisions of law.

An FIR No.50/2016 was registered on 17.3.2016 with Police Station – Anti Corruption Bureau, Jaipur (for short 'the ACB') for offence under sections 7, 13(1)(D), 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988') read with section 120B of the Indian Penal Code (for short 'the IPC'). The petitioner was, however, arrested on 11.3.2016 and was produced before the learned Special Judge No.1, Anti Corruption Cases, Jaipur (for short 'the court below') on 12.3.2016. The court below granted two days police custody remand though no FIR was registered till passing of the order. On 14.3.2016, he was sent in judicial custody for 14 days though FIR was not registered even till then. In view of above, arrest of the accused-petitioner and also the orders for police custody so as the judicial custody were without registration of the FIR. It was per se illegal as hit by the provisions of the Code of Criminal Procedure (for short 'the CrPC'). A person cannot be arrested without registration of FIR and, at the same time, no order can be passed under section 167 CrPC unless the FIR is registered. The provision aforesaid applies on registration of the FIR as the investigation can be conducted by the police thereupon only. If the investigation is not completed within 24 hours of registration of FIR, authorisation of custody can be sought under section 167 CrPC, subject to maximum period provided therein.

Learned counsel further states that as per section 167 CrPC, custody remand at a time can be given for maximum 15 days in the whole subject to maximum period of 60 days or 90 days, as the case may be. To seek remand, the accused is to be presented before the court concerned either physically or through video linkage.

In the instant case, the accused petitioner was presented before the court on 11.4.2016 but thereafter orders for remand were passed mechanically without securing presence of the accused petitioner by either of the modes. In view of above, all the orders for custody remand after 11.4.2016 become illegal so as the custody.

It is not only that custody of the accused petitioner was illegal on 11.3.2016 but even subsequent to registration of FIR when orders for remand were passed. On both the counts, petitioner deserves to be released by issuing a writ of habeas corpus.

Learned counsel further submits that after registration of FIR on 17.3.2016 and arrest prior to it on 11.3.2016, charge sheet was filed by the ACB on 9.5.2016 against the petitioner and co-accused. The trial court posted the case for taking cognizance of offence on 23.5.2016 as sanction for prosecution was not received against the petitioner. The custody of the petitioner without cognizance of offence becomes illegal as is not authorised under the Code of Criminal Procedure. The provisions of the CrPC authorises custody during the course of investigation under section 167 CrPC subject to maximum period given therein. The custody on filing of the charge sheet is authorised in the hands of the Magistrate on cognizance of offence.

In the instant case, cognizance of offence has not yet been taken thus subsequent to filing of the charge sheet, section 167 CrPC becomes inapplicable. The custody thereupon is governed under section 309 CrPC but in absence of cognizance of offence, it does not apply. In view of above, custody subsequent to filing of charge sheet also becomes illegal thus petitioner is entitled to be released.

To support the arguments, learned counsel has made reference of the judgment of the Apex Court in the case of “Natabar Parida, Bisnu Charan Parida, Batakrushna Parida and Babaji Parida versus The State of