Will Habeas Corpus Petition Lie Against Remand Order? Supreme Court Answers

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Case: Gautam Navlakha vs. National Investigation Agency

Coram: Justices UU Lalit and KM Joseph

Case No: [CrA 510 OF 2021]

Court Observation: “Thus, we would hold as follows: If the remand is absolutely illegal or the remand is afflicted with the vice of lack of jurisdiction, a Habeas Corpus petition would indeed lie. Equally, if an order of remand is passed in an absolutely mechanical manner, the person affected can seek the remedy of Habeas Corpus. Barring such situations, a Habeas Corpus petition will not lie”.

“Take a case where police custody is ordered by the Magistrate. By an interim order of the High court let us take it the High Court provides for judicial custody. It is done after the accused undergoes police custody for 5 days. Finally, the writ petition is however dismissed….In such a case where there is no stay of investigation and in fact even the police custody was obtained and thereafter the High Court after looking into the records also find that the petitioner should only be continued in the modified form of remand, the custody, which is undergone under an order of the court being also ‘during the investigation’ which the investigation is also not stayed, ought to be counted”.

“Now though the Cr.P.C. will not apply to a writ petition, what is required to include custody under Section 167 is that the detention brought about by the court ordering it during the investigation into an offence. It is a matter which will turn on the facts”.


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