A habeas corpus petition can only be entertained if the petitioner is in wrongful confinement at the time of the petition, and subsequent valid remand orders negate the need for a writ of habeas corpus. The obligation to provide free legal aid to the accused is mandated by Article 21 of the Constitution and the Legal Services Authority Act, 1987.

JUDGMENT

Sujoy Paul, J. - The interesting conundrum in this habeas corpus petition is whether the petitioner is entitled to be released if he remained in custody without therebeing any valid order of remand from 17.04.2020 to 27.05.2020 ? Despite the fact that on 27.05.2020, the learned Special Judge has issued a remand order.

2. The admitted facts between the parties are within narrow compass. An FIR was lodged against the petitioner on 27th of February, 2020 in Police Station, Niwadi, District Tikamgarh for committing offence punishable under Section 305 and 376 IPC and Section 5/6 of Protection of Children from Sexual Offences Act, 2012 (for short 'POCSO Act )'. The petitioner was arrested on 01.03.2020. On 02.03.2020, the police produced the petitioner before the Special Court under the POCSO Act. Considering the fact that investigation is going on, the Court accepted judicial remand upto 14.03.2020. Shri Vishal Daniel, learned counsel for the petitioner by placing reliance on ( Khatri and others (II) vs. State of Bihar and others, (1981) 1 SCC 627 ) urged that at this stage itself, the learned Special Judge was under an obligation to inform the petitioner that he is entitled to engage a private lawyer or in the case of his incapacity, he is entitled to get an Advocate through legal aid.

3. The next date was 14.03.2020 before the learned special Judge. The petitioner was produced before the Court through Video Conferencing. On perusal of case diary, the Special Court authorised the judicial remand between 14.03.2020 to 30.03.2020. The matter was not taken up on 30.03.2020. Indeed, it was taken up on 04.04.2020. The petitioner was not produced before the Court. The Court extended/authorised the remand upto 17.04.2020. The matter was directed to be posted on 17.04.2020 with a direction to produce the challan. On 17.04.2020, neither petitioner was produced nor government counsel appeared. Neither case diary was provided nor application seeking extension of remand was filed. The Special Court directed the Station House Officer, Niwadi to produce challan/file application seeking extension of remand. For this purpose, next date was fixed on 30.04.2020. On the said date, neither the government counsel nor the petitioner was produced before the Special Court. The said Court almost issued similar directions which were contained in the previous order dated 17.04.2020. Thereafter, the matter was taken up on 13.05.2020. The Government was represented by ADPO but petitioner was not produced. The learned special Judge noticed that neither charge-sheet nor application seeking extension of remand is filed and; therefore, directed issuance of notice to SHO as to why he failed to produce the challan and remand application. For obtaining his response, the matter was fixed on 27.05.2020.

4. Shri Vishal Daniel placed reliance on order-sheet dated 26.05.2020 and strenuously contended that petitioner engaged an Advocate and expressed his desire to get bail. Beyond 17.04.2020 and upto 27.05.2020 there was admittedly no valid authorization/judicial remand order passed by the Special Judge, the petitioner should have been given the benefit of bail. On 27.05.2020, the learned Special Judge opined that as per Section 167 of Criminal Procedure Code ( Cr.P.C. ), the maximum period for which an accused can be sent on remand is 90 days and said period is not over and hence judicial remand was granted/extended.

5. The argument of learned counsel for the petitioner is that as per Section 57 of Cr.P.C., the accused cannot be detained by police beyond 24 hours unless there exists a special order of Magistrate authorising the same. In the peculiar facts of this case, indisputably between 17.04.2020 and 27.05.2020 there existed no order of remand and; therefore, detention of petitioner was illegal hence he deserves to be released. Reliance is placed on a Constitution Bench judgment reported in ( Ram Narayan Singh vs. The State of Delhi and others, (1953) AIR SC