MANUBHAI RATILAL PATEL TR.USHABEN Vs STATE OF GUJARAT .
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: SLP(Crl) No.-006468-006468 / 2012
Diary number: 27540 / 2012
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IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1572 OF 2012 (Arising out of S.L.P. (Criminal) No. 6468 of 2012)
Manubhai Ratilal Patel Tr. Ushaben ... Appellant
Versus
State of Gujarat & Ors. ... Respondents
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
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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 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
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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 illegal and hence, the accused was entitled
to be admitted to bail.
5. The learned Magistrate dwelled upon the allegations
made against the accused and declined to release him on bail
regard being had to the nature of offences. Dealing with the
order passed by the High Court, he observed that the order
passed by the Hon’ble High Court pertained to stay of further
investigation although no investigation was required to be
carried out during judicial custody and, as the accused was
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involved in commission of grievous offences, it would not be
just to enlarge him on bail.
6. Being aggrieved by the aforesaid order, the accused
preferred Criminal Miscellaneous Application No. 539 of 2012
in the Court of learned Sessions Judge, Gandhinagar and also
prayed for grant of interim bail. The learned Sessions Judge
rejected the prayer for grant of interim bail and fixed the main
application for hearing on 24.7.2012.
7. Dissatisfied with the aforesaid orders, the accused
preferred a habeas corpus petition before the High Court of
Gujarat forming the subject matter of Special Criminal
Application No. 2207 of 2012. It was contended before the
High Court that since the investigation was stayed by the High
Court in exercise of power under Section 482 of the Code, the
learned Magistrate could not have 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
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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 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.
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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 preferred an application for bail under Section 437 of the Code, which came to be rejected and the accused was remanded to judicial custody and as such the petitioner – accused is in judicial custody as on now. It is pertinent to note that the learned JMFC has rightly observed in his order upon bail application that the High Court has stayed further investigation only.”
10. After so stating, the High Court dealt with the issue
whether the custody of the accused could be said to be illegal.
It was opined by the High Court that it was not possible to
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accept the stand that once the investigation was stayed, there
could not have been exercise of jurisdiction under Section
167(2) of the Code, for stay of investigation would not
eradicate the FIR or the investigation that had been already
carried out pursuant to lodging of FIR. It was further opined
that it was only an ad-interim order and if the stay order
would eventually be vacated or the quashing petition would
not be entertained, the investigation would be continued. The
High Court further observed that solely because the
investigation was stayed, it would not be apposite to say that
there was no investigation and the order passed by the learned
Magistrate was flawed.
11. Addressing to the issue of remand, the High Court opined
that 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’
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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 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
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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’Brien1, 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
confinement. It is of immemorial antiquity, an instance of its
use occurring in the thirty third year of Edward I. It has
through the ages been jealously maintained by the courts of
law as a check upon the illegal usurpation of power by the
executive at the cost of liege.
1 (1923) AC 603 (609)
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14. In Ranjit Singh v. The State of Pepsu (now Punjab)2,
after referring to Greene v. Secretary of States for Home
Affairs3, this Court observed that the whole object of
proceedings for a writ of habeas corpus is to make them
expeditious, to keep them as free from technicality as possible
and to keep them as simple as possible. The Bench quoted
Lord Wright who, in Greene’s case, had stated thus:
“The incalculable value of Habeas Corpus is that it enables the immediate determination of the right to the appellant’s freedom.”
Emphasis was laid on the satisfaction of the court
relating to justifiability and legality of the custody.
15. In Kanu Sanyal v. District Magistrate, Darjeeling
and others4, it was laid down that the writ of habeas corpus
deals with the machinery of justice, not the substantive law.
The object of the writ is to secure release of a person who is
illegally restrained of his liberty.
2 AIR 1959 SC 843 3 1942 AC 284 4 AIR 1973 SC 2684
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16. Speaking about the importance of the writ of habeas
corpus, a two-Judge Bench, in Ummu Sabeena v. State of
Kerala and others5, 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.
5 (2011) 10 SCC 781
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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 others6, 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.
6 AIR 1971 SC 2197
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19. In Re. Madhu Limaye and others7, the Court referred to
the decision in Ram Narayan Singh v. State of Delhi8 and
opined that the court must have regard to the legality or
otherwise of the detention at the time of return.
20. In Kanu Sanyal v. Dist. Magistrate, Darjeeling and
others9, contentions were raised to the effect that the initial
detention of the petitioner in District Jail, Darjeeling was
illegal because he was detained without being informed of the
grounds for his arrest as required under clause (i) of Article 22
of the Constitution and that the Sub-Divisional Magistrate,
Darjeeling had no jurisdiction to try and, therefore, he could
not authorise the detention of the petitioner under Section 167
of the Code. The two-Judge Bench adverted to the aforesaid
aspects and referred to the earlier decisions in Naranjan
Singh v. State of Punjab10, Ram Narain Singh (supra), B.R.
Rao (Supra) and Talib Hussain v. State of Jammu and
Kashmir11 and noted that three views had been taken by this
7 AIR 1969 SC 1014 8 AIR 1953 SC 277 9 AIR 1974 SC 510 10 AIR 1952 SC 106 11 AIR 1971 SC 62
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Court at various times pertaining to the relevant date to
determine the justifiability of the detention and opined as
follows:-
“This Court speaking through Wanchoo, J. (as he then was) said in A.K. Gopalan v. Government of India; [(1966) 2 SCR 427 = (AIR 1966 SC 816)]. “It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the date on 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,
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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 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 view in the following manner: -
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“….in habeas corpus proceedings 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.”
Eventually, the Bench ruled thus: -
“The production of the petitioner before the Special Judge, Vizakhapatnam, could not, therefore, be said to be illegal and his subsequent detention in the Central Jail, Vizakhapatnam, pursuant to the orders made by the Special Judge, Vizakhapatnam, pending trial must be held to be valid. This Court pointed out in AIR 1971 SC 2197 that a writ of habeas corpus cannot be 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”.”
21. The principle laid down in Kanu Sanyal (supra), thus, is
that any infirmity in the detention of the petitioner at the
initial stage cannot invalidate the subsequent detention and
the same has to be judged on its own merits.
22. At this juncture, we may profitably refer to the
Constitution Bench decision in Sanjay Dutt v. State
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through C.B.I., Bombay (II)12 wherein it has been opined
thus: -
“It is settled by Constitution Bench decisions 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
12 (1994) 5 SCC 410
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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, 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
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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. Kulkarni13, it
has been stated that where an accused is placed in police
custody for the maximum period of fifteen days allowed under
law either pursuant to a single order of remand or more than
one order, when the remand is restricted on each occasion to a
lesser number of days, the further detention of the accused, if
warranted, has to be necessarily to judicial custody and not
otherwise. Thus, the exercise of jurisdiction clearly shows that
the Magistrate performs a judicial act.
26. Presently, we shall advert to the concept of investigation.
The term “investigation” has been defined in Section 2(h) of the
Code. It reads as follows: -
“Investigation” includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person
13 AIR 1992 SC 1768
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(other than a Magistrate) who is authorised by a Magistrate in this behalf;”
27. A three-Judge Bench in H.N. Rishbud and another v.
State of Delhi14, while dealing with “investigation”, has stated
that under the Code, investigation consists generally of the
following steps: (1) Proceeding to the spot, (2) Ascertainment of
the facts and circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection of evidence
relating 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.
14 AIR 1955 SC 196
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28. In Adri Dharan Das v. State of West Bengal15, 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 Pradesh16, 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 sufficient
importance to vitiate or otherwise form any infirmity in the
inquiry or trial.
30. In S.N. Sharma v. Bipen Kumar Tiwari17, 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 others18, it
has been observed that there is a clear cut and well 15 AIR 2005 SC 1057 16 AIR 1957 SC 142 17 (1970) 1 SCC 653 18 (1980) 1 SCC 554
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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.
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
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accused was arrested. Thus, we are disposed to think that the
order 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 the cases of B.R. Rao (supra) and Kanu
Sanyal (supra), the court is required to scrutinize the legality
or otherwise of the order of detention which has been passed.
Unless the court is satisfied that a person has been committed
to jail custody by virtue of an order that suffers from the vice
of lack of jurisdiction or absolute illegality, a writ of habeas
corpus cannot be granted. It is apposite to note that the
investigation, as has been dealt with in various authorities of
this Court, is neither an inquiry nor trial. It is within the
exclusive domain of the police to investigate and is
independent of any control by the Magistrate. The sphere of
activity is clear cut and well demarcated. Thus viewed, we do
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not perceive any error in the order passed by the High Court
refusing to grant a writ of habeas corpus as the detention by
virtue of the judicial order passed by the Magistrate
remanding the accused to custody is valid in law.
33. Though we have not interfered with the order passed by
the High Court, yet we would request the High Court to
dispose of the Criminal Miscellaneous Application No. 10303
of 2012 within a period of six weeks. Liberty is granted to the
appellant to move the appropriate court for grant of bail, if so
advised.
34. Consequently, with the aforesaid observations mentioned
hereinabove, the appeal, being sans merit, stands dismissed.
……………………………….J. [K. S. Radhakrishnan]
……………………………….J. [Dipak Misra]
New Delhi; September 28, 2012.