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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 ..... atter was taken up on 17.7.2012 and the High Court issued notice and fixed the returnable date on 7.8.2012 and allowed the interim relief in terms of prayer No. (C) which pertained to stay of further proceedings in respect of the investigation. 4. The exposition of facts reveals that the accused was arrested on 16.7.2012 and produced before the learned Judicial Magistrate First Class, Gandhinagar at 4.00 p.m. on 17.7.2012. The police prayed for remand of the accused to police custody which was granted by the learned Magistrate upto 2.00 p.m. on 19.7.2012. On 18.7.2012, it was brought to the notice of the concerned investigation agency about the stay order passed by the High Court on 17.7.2012 and prayer was made not to proceed further with the investigation in obedience to the order passed by the High Court. It is pertinent to note that an application for regular bail under Section 439 of the Code was filed on 19.7.2012 before the learned Magistrate. Apart from other grounds, it was highlighted that when a petition was pending before the High Court for quashment of the First Information Report and a stay order had been passed pertaining to further investigation, the detention was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 9. The High Court adverted to the chronology of events and held thus: - "From the chronology of events as emerging from the petition as well as affidavit-in-reply, it is not in dispute that the arrest of the petitioner was effected on 16/07/2012. Whereas the quashing petition came to be filed on 17/07/2012 and the stay order was granted on 17/07/2012 at about 04.30 p.m. and the remand of the accused - petitioner to police custody was granted on 17/07/2012 till 02.00 p.m. of 19/07/2012. It is also required to be noted that order passed by learned JMFC has not been challenged anywhere and has attained finality. Thereafter, the order passed by this Court in CRMA No. 10303 of 2012 has been served on the Police authority on 17/07/2012 at 09.30 p.m. On the next day i.e. on 18/07/2012, the Investigating Officer seems to have informed learned JMFC about the stay granted by the High Court and has attended High Court in connection with anticipatory bail application preferred by the petitioner. It is also not the case of the petitioner that after the service of order of stay, any other investigation has been carried by the Investigating Officer. On 19/07/2012 itself the applicant prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention or confinement is a sine qua non for entertaining a petition for writ of habeas corpus and the custody of the petitioner being in pursuance of a judicial act, it could not be termed as illegal. 12. At this juncture, it is seemly to note that the appellant had knocked at the doors of the High Court in a habeas corpus petition. The writ of habeas corpus has always been given due signification as an effective method to ensure release of the detained person from prison. In P. Ramanatha Aiyar's Law Lexicon (1997 edition), while defining "habeas corpus", apart from other aspects, the following has been stated: - "The ancient prerogative writ of habeas corpus takes its name from the two mandatory words habeas. corpus, which it contained at the time when it, in common with all forms of legal process, was framed in Latin. The general purpose of these writs, as their name indicates, was to obtain the production of an individual." 13. In Secretary of State for Home Affairs v. O'Brien[1], it has been observed that it is perhaps the most important writ known to the constitutional law of England affording as it does a swift and imperative remedy in all cases of illegal restraint or co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powerful authority. 17. Having stated about the significance of the writ of habeas corpus as a weapon for protection of individual liberty through judicial process, it is condign to refer to certain authorities to appreciate how this Court has dwelled upon and expressed its views pertaining to the legality of the order of detention, especially that ensuing from the order of the court when an accused is produced in custody before a Magistrate after arrest. It is also worthy to note that the opinion of this Court relating to the relevant stage of delineation for the purpose of adjudicating the legality of the order of detention is of immense importance for the present case. 18. In Col. Dr. B. Ramachandra Rao v. The State of Orissa and others[AIR 1971 SC 2197], it was opined that a writ of habeas corpus is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal. 19. In Re. Madhu Limaye and others[AIR 1969 SC 1014], the Court referred to the decision in Ram Narayan Singh v. State of Delhi[AIR 1953 SC 277] and opined that the court must have regard to the legality or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngland and may be taken as having received the largest measure of approval in India, though the third view also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view, the earliest date with reference to which the legality of detention may be examined is the date of filing of the application for habeas corpus and the Court is not, to quote the words of Mr. Justice Dua in AIR 1971 SC 2197 "concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus"." (emphasis supplied) After so stating, the Bench opined that for adjudication in the said case, it was immaterial which of the three views was accepted as correct but eventually referred to paragraph 7 in the case of B.R. Rao (supra) wherein the Court had expressed the vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. It is apt to note that in Madhu Limaye (supra), it has been stated that once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters. 25. In Central Bureau of Investigation, Special Investigation Cell-I, New Delhi v. Anupam J. Kulkarni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial. 30. In S.N. Sharma v. Bipen Kumar Tiwari[(1970) 1 SCC 653], it has been observed that the power of police to investigate is independent of any control by the Magistrate. 31. In State of Bihar v. J.A.C. Saldanha and others[(1980) 1 SCC 554], it has been observed that there is a clear cut and well demarcated sphere of activity in the field of crime detection and crime punishment and further investigation of an offence is the field exclusively reserved for the executive in the police department. 32. Coming to the case at hand, it is evincible that the arrest had taken place a day prior to the passing of order of stay. It is also manifest that the order of remand was passed by the learned Magistrate after considering the allegations in the FIR but not in a routine or mechanical manner. It has to be borne in mind that the effect of the order of the High Court regarding stay of investigation could only have bearing on the action of the investigating agency. The order of remand which is a judicial act, as we perceive, does not suffer from any infirmity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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