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2024 Supreme(P&H) 1209
IN THE HIGH COURT OF PUNJAB AND HARYANA
KULDEEP TIWARI, J.
Manohar Lal - Appellant
Versus
Hon’ble Punjab and Haryana High Court and Ors. - Respondents
CRWP 8774 of 2024
Decided On : 09-09-2024
For the Appearing Parties :Mr. Vineet Kumar Jakhar Advocate
A writ of habeas corpus is not maintainable when the petitioner is in judicial custody under a valid order from a competent court.
Headnote:(A) Constitution of India - Article 226 - Judges (Protection) Act, 1985 - Writ of habeas corpus - Petitioner seeks release from judicial custody under FIR No.51 dated 21.05.2024 for alleged offenses under IPC - Court finds no merit in the petition as the issue of maintainability is settled law - Writ cannot be granted if the petitioner is undergoing a sentence imposed by a competent court - Relevant judgments cited include "Col. Dr. B. Ramachandra Rao v. State of Orissa", "Kanu Sanyal v. District Magistrate, Darjeeling", and others affirming that habeas corpus is not maintainable during judicial custody. (Paras 1-11)
(B) Judicial Remand - The court reiterates that a writ of habeas corpus cannot be entertained when a person is in judicial custody by an order of a competent court, unless the order is shown to be without jurisdiction or illegal. (Paras 8-11)
Facts of the case:
The petitioner is incarcerated in Model Jail, Chandigarh, under FIR No.51 for offenses including cheating and criminal conspiracy, and seeks release claiming illegal detention due to non-compliance with procedural safeguards at arrest.
Findings of Court:
The court holds that the petition for habeas corpus is not maintainable as the petitioner is in judicial custody by virtue of a valid order.
Issues: The main issue addressed is the maintainability of a habeas corpus petition when the petitioner is in judicial custody.
Ratio Decidendi: The court concludes that a writ of habeas corpus cannot be granted if the detention is based on a valid order from a competent court, reaffirming established legal principles.
Result: Petition dismissed.
JUDGMENT :
Mr. Kuldeep Tiwari, J. (Oral):- 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, registered 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”, (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 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 information 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 presumed to be aware of the sentence imposed on him. We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent court then too writ of habeas corpus 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.
