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TMI Blog2012 (9) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... would request the High Court to dispose of the Criminal Miscellaneous Application within a period of six weeks. - CRIMINAL APPEAL NO. 1572 OF 2012 (Arising out of S.L.P. (Criminal) No. 6468 of 2012) - - - Dated:- 28-9-2012 - RADHAKRISHNAN,K.S. AND MISRA,DIPAK, JJ. J U D G M E N T Dipak Misra, J. Leave granted. 2. The appellant was an accused in FIR No. I-CR No. 56/12 registered at Pethapur Police Station on 20th of June, 2012 for offences punishable under Sections 467, 468, 471, 409 and 114 of the Indian Penal Code (for short the IPC ). Challenging the registration of the FIR and the investigation, the accused-appellant (hereinafter referred to as the accused ) preferred Criminal Miscellaneous Application No. 10303 of 2012 on 11.7.2012 under Section 482 of the Code of Criminal Procedure (for brevity the Code ) in the High Court of Gujarat at Ahmedabad for quashing of the FIR. A prayer was also made for stay of further proceedings in respect of the investigation of I-CR No. 56/12. 3. The unfurling of factual scenario further shows that the matter was taken up on 17.7.2012 and the High Court issued notice and fixed the returnable date on 7.8.2012 and all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercised power under Section 167(2) of the Code remanding the accused either to police or judicial custody. It was submitted that the power of the Magistrate remanding the accused to custody during the course of investigation stood eclipsed by the order of stay passed by the High Court and, therefore, the detention was absolutely illegal and non est in law. It was also urged that as the detention of the accused was unlawful, a writ of habeas corpus would lie and he deserved to be set at liberty forthwith as long as the stay order was operative. 8. The aforesaid stand put forth by the learned counsel was combated by the State contending, inter alia, that it could not be said that there had been no investigation as arrest had already taken place and hence, stay of further investigation would not nullify the order of remand, be it a remand to police custody or judicial custody. Highlighting the said stance, it was propounded that the order of remand could not be treated as impermissible warranting interference by the High Court in exercise of jurisdiction of writ of habeas corpus. 9. The High Court adverted to the chronology of events and held thus: - From the chronology of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the order of remand of the accused to custody could not be said to be a part of the investigation and hence, the said order was not in conflict with the order passed under Section 482 of the Code of Criminal Procedure in Criminal Miscellaneous Application No. 10303 of 2012. Reference was made to Section 2(h) of the Code which defines investigation and it was ruled that the order passed by the learned Magistrate could not be termed as a part of the investigation. Eventually, the High Court opined that it could not be held that when the order was passed by the learned JMFC, there was no investigation and, therefore, there was no force in the argument that the learned JMFC could not have remanded the accused in such a situation in exercise of powers under Section 167 of the Code, and secondly, the act of the learned JMFC remanding the accused to custody is a judicial act which cannot be termed as part of the investigation and cannot be considered to have been covered under the stay granted by the High Court in CRMA No. 10303 of 2012. It was further held that illegal or unauthorised detention or confinement is a sine qua non for entertaining a petition for writ of habeas corpus and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a two- Judge Bench, in Ummu Sabeena v. State of Kerala and others[(2011) 10 SCC 781], has observed as follows: - the writ of habeas corpus is the oldest writ evolved by the common law of England to protect the individual liberty against its invasion in the hands of the executive or may be also at the instance of private persons. This principle of habeas corpus has been incorporated in our constitutional law and we are of the opinion that in a democratic republic like India where Judges function under a written Constitution and which has a chapter on fundamental rights, to protect individual liberty the Judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India. The most effective way of doing the same is by way of exercise of power by the Court by issuing a writ of habeas corpus. In the said case, a reference was made to Halsbury s Laws of England, 4th Edn. Vol. 11, para 1454 to highlight that a writ of habeas corpus is a writ of highest constitutional importance being a remedy available to the lowliest citizen against the most powerful authority. 17. Having stated about the significance of the writ of habe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the application is made to the Court is legal, if nothing more has intervened between the date of the application and the date of the hearing . In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab, [(1952 SCR 395) = AIR 1952 SC 106)] and Ram Narain Singh v. State of Delhi, [(1953 SCR 652) = (AIR 1953 SC 277)] a slightly different view was expressed and that view was reiterated by this Court in B.R. Rao v. State of Orissa (AIR 1971 SC 2197) where it was said; In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the return and not with reference to the institution of the proceedings. And yet in another decision of this Court in Talib Husain v. State of Jammu Kashmir (AIR 1971 SC 62) Mr. Justice Dua, sitting as a Single Judge, presumably in the vacation, observed that in habeas corpus proceedings the Court has to consider the legality of the detention on the date of the hearing. Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and practice in England and may be taken as having received the largest measure of approval ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a petition seeking the writ of habeas corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order. 23. Keeping in view the aforesaid concepts with regard to the writ of habeas corpus, especially pertaining to an order passed by the learned Magistrate at the time of production of the accused, it is necessary to advert to the schematic postulates under the Code relating to remand. There are two provisions in the Code which provide for remand, i.e., Sections 167 and 309. The Magistrate has the authority under Section 167(2) of the Code to direct for detention of the accused in such custody, i.e., police or judicial, if he thinks that further detention is necessary. 24. The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the investigation and to be produced at the trial, and (5) Formation of the opinion as to whether on the material collected, there is a case to place the accused before a Magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Section 173. 28. In Adri Dharan Das v. State of West Bengal[AIR 2005 SC 1057], it has been opined that arrest is a part of the process of investigation intended to secure several purposes. The accused may have to be questioned in detail regarding the various facets of motive, preparation, commission and aftermath of the crime and the connection of other persons, if any, in the crime. 29. In Niranjan Singh v. State of Uttar Pradesh[AIR 1957 SC 142], it has been laid down that investigation is not an inquiry or trial before the court and that is why the legislature did not contemplate any irregularity in investigation as of sufficien ..... X X X X Extracts X X X X X X X X Extracts X X X X
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