Allahabad High Court has expressed concern over the fact that many accused are challenging their detention by filing habeas corpus petitions in the Supreme Court even after their bail petitions are rejected. In the case of Neeraj vs Government of Uttar Pradesh, a division bench of Justice Siddharth and Justice Vinay Kumar Dwivedi said that such accused are relying on the latest judgments of the Supreme Court, which have held that initial error in the custody of the accused is irreparable and fundamental rights can be invoked at any stage of the case.
The Division Bench said that the situation is anarchic and if it is allowed to continue, the accused will be arbitrarily prevented from asserting their fundamental rights under Article 22(1) of the Constitution of India at any stage of the investigation or trial. habeas corpus Will continue to file petitions.
The Division Bench said that, therefore, in the absence of any bar on the right of the accused to approach this Court to challenge the preliminary arrest, in a sense, the Pandora’s Box has been opened and the petitions are being filed after taking cognizance of the charge sheet, framing of charges and remand orders under Sections 209 and 309 CrPC as well as during the trial.
Allahabad High Court bluntly
The High Court said that it has two different decisions of the Supreme Court on the question of arrest, remand and illegal detention. The court said that old decisions have said that where a person is sent to jail custody on the basis of an order which is ultra vires or completely illegal, a habeas corpus petition cannot be filed.
The High Court said that on the other hand, other judgments of the Supreme Court have not placed any restriction on the right of a person to file a habeas corpus petition, at whatever stage of the investigation/trial, on the ground that if the initial remand order is illegal, the defect goes to the root and cannot be remedied at the later stages of the investigation/trial.
The High Court said that other judgments have opened the door for detained persons to approach the courts at any stage of investigation or trial to claim that their initial remand order was illegal.
Exceptional comment on SC decisions
The division bench said that in view of other decisions of the Supreme Court in the case of Vihan Kumar and others, we are facing a strange situation due to the inconsistent views of the Supreme Court in the above two decisions.
The High Court made these observations while hearing a petition filed by a man accused of dowry death and murder of his wife and one-year-old daughter. While hearing the bail plea of that person, the accused had already been acquitted by the lower court.
After examining two judgments of the Supreme Court, the High Court opined that the validity of the initial detention and subsequent detention orders can be considered as a ground to maintain the habeas corpus petition only till the investigation continues.
Allahabad High Court said this
The Division Bench further held that once the investigation is completed, the charge sheet is presented and the order of cognizance of the charge sheet is passed, the right to challenge the prima facie illegality in the remand order cannot be invoked.
The cognizance order of the Court can be challenged by taking recourse to appropriate statutory remedies provided under the provisions of the Code of Criminal Procedure/BNSS. Also clarified that after taking cognizance of the chargesheet presented by the investigating officer, the preliminary remand order passed by the Magistrate loses its significance. The High Court ruled that filing a habeas corpus petition after a judicial order of detention and subsequent orders for taking cognizance of the offence, sending the case to court and framing of charges cannot be justified.
High Court’s big decision on habeas corpus petition
The Division Bench said that the earlier decisions of the Supreme Court, in which it has been held that the legality of detention in a habeas corpus petition should be examined in the context of the order in force on the date of withdrawal of the rule, were given after considering the entire process of criminal procedure and trial. However, the second group of recent decisions does not take into account the above mentioned prior decisions of the Supreme Court. Thus the Court ruled that the second group of Supreme Court decisions is not binding precedent and is influenced by the principles of ‘stare decisis’.
The High Court said that the above consideration of other decisions given in the cases of Vihan Kumar, Prabir Purkayastha, Pankaj Bansal, Mihir Rajesh Shah, Kasi Reddy and Upendra Reddy appears to be influenced by the principles of status quo.
The court observed that the lower court has taken cognizance of the chargesheet filed against the present petitioner. The court further said that after framing of charges against him, examination of witnesses has also started in the lower court. The petitioner has approached the Court at a very late stage questioning the illegality of the initial remand order, while neither mentioning the date of the order nor including it in the record of the petition, even though the trial has commenced and the statements of the prosecution witnesses are being recorded. It is neither appropriate nor legal for the petitioner to challenge his initial arrest. The habeas corpus petition has no merit and should be dismissed.
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