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TMI Blog2018 (12) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... essed our considered view that, the facts and circumstances of the present case do not admit the continued unlawful detention of the applicants. In view of the foregoing, the present application is allowed. The applicants shall be released on interim bail, during the pendency of the accompanying petitions, on their furnishing a personal bond in the sum of ₹ 5,00,000/- each with two local sureties each of the like amount to the satisfaction of the trial court - W.P.(CRL) 3842/2018, W.P.(CRL.) 3843/2018 - - - Dated:- 20-12-2018 - MR. SIDDHARTH MRIDUL AND MS. SANGITA DHINGRA SEHGAL JJ. Advocates who appeared in this case: For the Petitioners: Mr. Kapil Sibal, Sr. Advocate and Mr. Sudhir Nandrajog, Sr. Advocate with Mr. Aditya Singla, Mr. Pallav Gupta and Mr. Adit Pujari, Advocates in W.P.(CRL.) 3843/2018 Mr. Siddharth Aggarwal, Advocate with Ms. Supriya Juneja, Ms. Chestha Jetley and Mr. Krishna Multani, Advocates in W.P.(CRL) 3842/2018 For the Respondents: Ms. Maninder Acharya, ASG with Mr. Anurag Ahluwalia, CGSC, Mr. Amit Mahajan, CGSC, Ms. Tejaswita Sachdeva, Mr. Viplav Acharya, Mr. Harshul Chaudhary, Advocates Mr. Saud Ahmed, Joint Director, SFIO, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vit be filed within a period of three weeks from today with advance copies to counsel for the petitioners, who may file rejoinder thereto, if any, before the next date of hearing. 7. List on 31.01.2019. CRL.M.A.50033/2018 in W.P.(CRL.) 3842/2018 CRL.M.A.50035/2018 in W.P.(CRL.) 3843/2018 1. The present applications instituted on behalf of the applicants/petitioners in the writ petition (hereinafter referred to as the applicants ) seek immediate ad-interim ex parte release of the applicants from the alleged illegal arrest dated 10.12.2018. 2. Having heard learned counsel appearing on behalf of the parties at length and with their consent the present applications are disposed of with the following order:- 3. Briefly encapsulated, the challenge in the present proceedings is fundamentally in the nature of a declaration to the effect that, the Serious Fraud Investigation Office (hereinafter referred to as SFIO ) had no legal sanction for carrying on investigation under Section 212(3) of the Companies Act, 2013 (hereinafter referred to as the said Act ), after the expiry of the time, specified in the order dated 20.06.2018 issued by the Joint Director, Minist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Competent Authority so to do, was patently without jurisdiction. It is, therefore, urged that, the arrest of the applicants on 10.12.2018, after the specified period had expired and prior to the SFIO obtaining ex post facto extension from the Competent Authority, suffers from the vice of illegality and lack of jurisdiction. 9. It is further urged on behalf of the applicants that, consequently, once the action of the SFIO is without jurisdiction, it is for the latter to establish before this Court that, the orders of remand, rendered by the Judicial Magistrate First Class, Gurugram and Sessions Judge, Gurugram dated 11.12.2018 and 14.12.2018 (hereinafter referred to as the remand order ) stand the test of validity and consequently do not suffer from the vice of lack of jurisdiction rendering them illegal. 10. It is also urged on behalf of the applicants that, the order of extension passed by the Competent Authority on 14.12.2018, is inter alia without application of mind and non est, since the same was granted without the formulation of a prior opinion, in accord with the mandate of the provisions of Section 212 of the said Act. In other words, it is the case of the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emand orders were rendered by a Competent Magistrate at Gurugram, which have not been specifically assailed in these proceedings? 16. In this behalf, there is no gainsaying the legal position, that a writ in the nature of habeas corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure the release of a person who is illegally restrained of his liberty. The writ of habeas corpus is, therefore, primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined, and if the detention is found to be unlawful, having himself discharged and freed from such restraint. (Ref: Kanu Sanyal vs. District Magistrate, Darjeeling, reported as (1973) 2 SCC 674). 17. The Constitution Bench of the Hon ble Supreme Court in Kanu Sanyal (supra) observed as follows:- 4. It will be seen from this brief history of the writ of habeas corpus that it is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t securing the presence of such persons before them and taking them under custody and control. But the circumstances have changed long since and it is no longer necessary to have the body of the person alleged to be wrongfully detained before the Court in order to be able to inquire into the legality of his detention and set him free, if it is found that he is unlawfully detained. The question is whether in these circumstances it can be said that the production of the body of the person alleged to be unlawfully detained is essential in an application for a writ of habeas corpus. We do not think so. There is no reason in principle why that which was merely a step in the procedure for determining the legality of detention and securing the release of a subject unlawfully restrained should be elevated to the status of a basic or essential feature of the writ. That step was essential to the accomplishment of the purpose of the writ at one time, but it is no longer necessary. The inquiry into the legality of the detention can be made and the person illegally detained can be effectively set free without requiring him to be produced before the Court. Why then should it be necessary that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bom 2712] her husband Rizwan Alam Siddiquee was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17-3-2018 and which police remand was to enure till 23-3-2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued. 20. In Manubhai Ratilal Patel (supra) the Hon ble Supreme Court of India pleased to observe as follows:- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not suffer from any infirmity. The only ground that was highlighted before the High Court as well as before this Court is that once there is stay of investigation, the order of remand is sensitively susceptible and, therefore, as a logical corollary, the detention is unsustainable. It is worthy to note that the investigation had already commenced and as a resultant consequence, the accused was arrested. Thus, we are disposed to think that the order [ Manubhai Ratilal Patel v. State of Gujarat, Special Criminal Application No. 2207 of 2012, decided on 7-8-2012 (Guj)] of remand cannot be regarded as untenable in law. It is well-accepted principle that a writ of habeas corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order which prima facie does not appear to be without jurisdiction or passed in an absolutely mechanical manner or wholly illegal. As has been stated in B. Ramachandra Rao [(1972) 3 SCC 256 : 1972 SCC (Cri) 481 : AIR 1971 SC 2197] and Kanu Sanyal [(1974) 4 SCC 141 : 1974 SCC (Cri) 280] , the court is required to scrutinise the legality or otherwise of the order of detention which has been pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xxxx xxxx xxxx xxxx xxxx 9. In the nature of the interim ordedr that we propose to pass, we refrain from elaborating on the contentions and the reasons recorded by the High Court at this stage. However, we may observe that prima facie we find that the reasons being on the constitutional validity of provisions apart from Sections 212(6)(ii) and 212(7) of the Act ought not to have weighed with the High Court for grant of interim relief. Moreover, in any case, the High Court ought to have applied the broad contours required to be kept in mind for grant of bail under Section 439 Cr.P.C., which aspect, we find has not been adverted to at all in the impugned order. There is prima facie substance in the grievance of the appellants that the High Court has failed to consider matter such as the nature of gravity of the alleged offence. Moreover, we find that in the course of the impugned order, the High Court even proceeded to recall certain observations made by it in another case ( Poonam Malik v. Union of India [W.P.(Crl.) No.2384 of 2018] order dated 10th August, 2018 . 22. On a conspectus of the above decisions and in the light of the arguments advanced on behalf of the parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is absolute. The arrest of the applicants on 10.12.2018 in the light of the circumstances antecedent and attendant was an absolute illegality and patently suffers from the vice of lack of legal sanction and jurisdiction. 28. This Court in a petition for habeas corpus cannot justify the continued illegal detention of the applicants; merely on account of the circumstance that the concerned Magistrate has rendered remand orders. The further custody of the applicants would, in our considered view, violate the principles of personal liberty, enshrined in Article 21 of the Constitution of India. The continued detention of the applicants does not admit of lawful sanction. 29. Even otherwise, the remand order dated 14.12.2018, insofar as, it observes as follows:- 6. .. And in this case all, after investigations when the team submitted report to competent authority, which is the Director of SFIO, he permitted the team to arrest the accused and go for further investigations, which in the given facts and circumstances amount to extension. is wrong, incorrect and patently contrary to law and the official record. 30. This is quite apart from the circumstance that, the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licants are a flight risk or that they will misuse the liberty granted to them by this Court. 37. We must also add that, the applicants have deep roots in the society and belong to a respectable business family and have no criminal antecedents. Consequently, there is no possibility of their absconding and not being available for further investigation. 38. In view of the foregoing discussion, the issues framed in the present applications are answered in favour of the applicants and against the official respondents. We have already hereinbefore expressed our considered view that, the facts and circumstances of the present case do not admit the continued unlawful detention of the applicants. 39. In view of the foregoing, the present application is allowed. The applicants shall be released on interim bail, during the pendency of the accompanying petitions, on their furnishing a personal bond in the sum of ₹ 5,00,000/- each with two local sureties each of the like amount to the satisfaction of the trial court subject to the following conditions:- (i) That the applicants shall not leave the territorial jurisdiction of National Capital Region, without prior permission ..... X X X X Extracts X X X X X X X X Extracts X X X X
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