2005 (10) TMI 572 - HC - Indian Laws

Summary

Issues Involved:
1. Legality of the detention of the petitioners from 5.5.2005 to 8.6.2005.
2. Competency of the Judge who handled the case on 5.5.2005.
3. Validity of remand orders passed after 5.5.2005.
4. Applicability of the first proviso to Section 309(2) of the Code of Criminal Procedure, 1973.
5. Whether the petitioners' constitutional rights under Article 22 were violated.

Detailed Analysis:

1. Legality of the Detention from 5.5.2005 to 8.6.2005:
The petitioners argued that their detention from 5.5.2005 to 8.6.2005 was illegal as no judicial custody remand order was passed on 5.5.2005 by Shri. P.P. Birajdar, the 5th Additional District & Sessions Judge, Pune. The court found that the detention during this period was unauthorized since no valid remand order was passed on that date. However, the court emphasized that in habeas corpus proceedings, the legality of detention is considered on the date of return and not on the date of the institution of the petition.

2. Competency of the Judge on 5.5.2005:
Shri. P.P. Birajdar, who handled the case on 5.5.2005, was not appointed as a Judge of the Special Court under Section 5 of the MCOC Act, 1999. The court found that he was not competent to deal with the case on that date. However, this did not affect the legality of subsequent remand orders passed by the competent Judge of the Special Court.

3. Validity of Remand Orders Passed After 5.5.2005:
The court examined the remand orders passed after 5.5.2005 and found them to be valid. The Judge of the Special Court had extended the judicial custody remand by making appropriate endorsements on the remand warrants. The court held that these endorsements, coupled with the order sheets, constituted a proper exercise of power under Section 309(2) of the Code of Criminal Procedure, 1973.

4. Applicability of the First Proviso to Section 309(2) of the Code of Criminal Procedure, 1973:
The petitioners argued that the remand orders exceeding 15 days at a time were illegal. The court held that the first proviso to Section 309(2) applies only to Magistrates and not to Sessions Judges or Special Judges. The Judge of the Special Court, acting in the capacity of a Sessions Judge, was not bound by the 15-day limitation for remand orders.

5. Violation of Constitutional Rights under Article 22:
The petitioners contended that their detention violated their constitutional rights under Article 22. The court found that while the detention from 5.5.2005 to 8.6.2005 was unauthorized, the subsequent valid remand orders cured any constitutional infirmities. The court reiterated that in habeas corpus proceedings, the legality of detention is considered on the date of return.

Conclusion:
The court dismissed the petition, holding that the remand orders passed after 5.5.2005 were valid and the petitioners' detention on the date of return was lawful. The court also suggested amendments to the MCOC Act to address situations where no Judge of the Special Court is available to pass urgent orders.