Even if the remand order is illegal, still the Writ of Habeas Corpus is not a constructive remedy: Bombay High Court

State has failed to provide medical assistance: Plea in Bombay High Court

Case No.: Writ Petition No. 4342 of 2019

Case Name: Ankit Ghanshyam Mutha vs. Union of India, Intelligence Officer & State of Maharashtra

Coram: Justice S.S. Shinde and Justice N.B. Suryawanshi 

Brief facts

  • About in March 2019, the second respondent started an investigation into the Smuggling of Gold by a syndicate. Happy Dhakad was arrested under Section 104 of the Customs Act, 1962. Thereafter, though his bail application was rejected, subsequently statutory default bail was granted to him. 
  • An action under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act in which detention was not sustained by the Advisory Board and hence he was released. Criminal Writ Petition No.2700 of 2019 was preferred by the family members of Shri. Happy Dhakad as well as by the petitioner, seeking certain reliefs to protect their fundamental rights. 
  • An order came to be passed by partly allowing the Writ Petition thereby permitting the presence of advocate at visible, but not audible distance during interrogation and video recording of the statement was also allowed. Directorate of Revenue Intelligence Officers, without disclosing their identity apprehended the petitioner at an Office in Udaipur, Rajasthan-State, where the petitioner is presently employed. The officers were not wearing any badges nor carrying their identity cards.
  • The petitioner was interrogated in the absence of any advocate, in spite of orders passed by this Court. The petitioner’s formal arrest was shown and memorandum of arrest was served on him. At 4.00 p.m. the petitioner was produced before the learned Additional Chief Metropolitan Magistrate, Mumbai seeking his remand, which according to the petitioner is much after the expiry of 24 hours of arrest on 27.08.2019. 
  • An application was filed on behalf of the petitioner opposing remand highlighting his illegal arrest, non-production within 24 hours. The petitioner, therefore, seeking his release from the custody on the ground of his illegal arrest, non-production within 24 hours before the competent court, and for failure to take his transit remand etc.  

Issue:

In spite of the fact that the application was filed before the learned Trial Court opposing remand, pointing out the illegal arrest and non-production of the petitioner within 24 hours, non-obtaining transit remand, the learned Magistrate has mechanically passed an order granting remand. According to the learned counsel for the petitioner, the actions on the part of the respondents have violated the fundamental rights guaranteed to the petitioner under Article 14, 20, 21 and 22 of the Constitution of India. The petitioner is, therefore, entitled to be released forthwith by issuing the Writ of Habeas Corpus.  

Judgment

  • In Saurabh Kumar, the Hon’ble Supreme Court held that even if Magistrate has acted rather mechanically remanded the accused in judicial custody and has taken the process in a cavalier fashion which shows insensitivity towards denial of personal liberty of a citizen, the Writ of Habeas Corpus is not maintainable if there is order of remand, in which case the remedy lies elsewhere. 
  • InSerious Fraud Investigation Office, the Hon’ble Supreme Court has also held that the action of directing remand of accused is a judicial function and challenge the same is not to be entertained in Habeas Corpus petition. 
  • The Hon’ble Supreme Court in Sanjay Dutt’scase has also held that a Writ of Habeas Corpus filed based on the absence of the valid order of remand or detention has to be dismissed if, on the date of return of rule, custody of the detenue is based on a valid order. If the above ratio is applied to the facts of the present case, the judges are in the view that even if for the sake of the argument, it is accepted that initially there was a violation of Article 22(2) of the Constitution of India, taking into consideration the facts of the present case and the serious allegations/accusations levelled against the petitioner, he need not be set at liberty. It is a matter of record that the detenue was remanded to judicial custody by the orders of the Competent Court (ACMM), at the time of the filing of this petition. 
  • The judges were in the view that this is not a fit case to exercise their extraordinary jurisdiction. Taking into consideration the overall facts and circumstances of the case and in view of the serious allegations levelled against the petitioner about his involvement in the multi-crore scam of the smuggling of gold in which the petitioner has actively participated, the judges were not inclined to exercise their discretion in favour of the petitioner for issuance of Writ of Habeas Corpus. 
  • The petitioner has the efficacious remedy of filing the bail application and seeking regular bail before the competent court. The legal position as laid down by the authorities of the Hon’ble Supreme Court and this court makes it clear that even if the remand order is illegal, which is passed mechanically in a cavalier fashion, still the remedy of the Writ of Habeas Corpus cannot be said to be an efficacious remedy, but in terms of the Hon’ble Supreme Court filing of bail application in such circumstances is appropriate remedy. 
  • The petitioner is entitled to avail appropriate remedy as available in law for seeking bail as per the advice. Thus, the judges were not inclined to entertain this petition and hence they pass the order that the Writ Petition is dismissed and he rule is discharged, there shall be no order as to the costs.

Edited by Vartika Gajendra Singh

Approved & Published – Sakshi Raje

SOMA SINGH
I am Soma Singh from Sharda University School of Law, my interest areas are Corporate law, jurisprudence and ADR. I describe myself as an ambivert. Enjoys reading mythological tales