Bringing back Habeas Corpus: In defence of the Delhi High Court

Bar & Bench

Adit Subramaniam Pujari

In a thinly veiled criticism of a specific learned judge of the Delhi High Court, advocate Kanu Agrawal has sought to whittle down the glorious and efficacious nature of the writ of Habeas Corpus.

The article, which is masked as an examination of the judgments passed by a “particular Division Bench” of the Delhi High Court “since the change of roster at the turn of the year”, fails to take into account how the Delhi High Court, as an institution, has since 2015 championed the cause of personal liberty, and strict adherence to procedure established by law.

In order to dispel the notion that the said article relates only to how Habeas Corpus petitions have been handled despite “strong contrary precedent” by a “particular Division Bench”, an examination of the judgments relied upon in the article would be useful.

The Rajbhushan judgment

The first judgment used by the author of the article to buttress his point is that of Rajbhushan Omprakash Dixit v. Union of India. Rajbhushan was decided on February 19, 2018 by a Bench of Justices S Muralidhar and IS Mehta. One of the arguments raised by the counsel for Rajbhushan was that offences under the Prevention of Money Laundering Act, 2002, were non-cognizable.

Simply stated, this means that Rajbhushan could not be arrested by a police officer without a warrant of a court. It was also argued that the grounds of arrest were not provided to Rajbhushan at the time of his arrest. The Bench noted in Rajbhushan that despite the heading of Section 45 (which states that “Offences to be cognizable and non-bailable”), the section as it stood prior to 2005, had been amended “with the specific intention of making the offences under the PMLA non-cognizable”.

Even the statement by the Finance Minister on the floor of the House was that “…we are…amending Sections 44 and 45 of the Act to make the offence non-cognisable…” in response to a question as to whether offences under the PMLA were cognizable or non-cognizable.

This meant that any arrest made without a warrant would be illegal. When a decision of a coordinate Bench of the Delhi High Court, Vakamulla Chandrashekhar v. Enforcement Directorate was pointed out, the “particular Division Bench”, as per established judicial precedent, while taking a different view, referred the matter to a larger Bench for consideration.

The “particular Division Bench” thereafter proceeded to consider the prayer for interim relief. The article appears to have taken umbrage to such course of action. The article fails to consider that a Division Bench of the Delhi High Court had previously, in Gurcharan Singh v. Union of India on April 27, 2016, proceeded to release the petitioner therein by allowing the interim relief, after prima facie holding that the CrPC ought to apply to provisions under the PMLA.

The said order was affirmed by the Supreme Court by dismissal of the SLP filed against it. The article also ignores a decision of the Gujarat High Court permitting similar relief in a petition under Article 226 of the Constitution.

Both the above decisions were taken note of by the “particular Division Bench” in Rajbhushan, which appears to have escaped the attention of the author of the article. The article also appears to have ignored that the “particular Division Bench” placed reliance on a decision of the Supreme Court in Ashok Munilal Jain v. Assistant Director, Directorate of Enforcement to hold that the decisions of the Punjab & Haryana High Court, and the Bombay High Court as also that of the Jharkhand High Court, are “no longer good law”.

The “particular Division Bench” also placed reliance on Madhu Limaye, wherein the Supreme Court has held categorically while considering grant of Habeas Corpus that,

If their detention in custody could not continue after their arrest because of the violation of Article 22(1) of the Constitution they were entitled to be released forthwith. The orders of remand are not such as would cure the constitutional infirmities.”

Therefore, evidently, Rajbhushan did not “kick-start” “a chain of events”. Gurcharan Singh, a decision of a Division Bench of the Delhi High Court prior in point of time permitted such interim relief, and so did the Gujarat High Court in Rakesh Manekchand Kothari. Both these decisions are in line with that of the Supreme Court in Madhu Limaye.

The Karti Chidambaram judgment

The second judgment used in the article is that of Karti Chidambaram v. The Directorate of Enforcement. In this regard, the very first paragraph of the article narrates something that the records do not. Karti had initially preferred a petition under Article 32 of the Constitution before the Supreme Court, which came to be numbered as W.P. (Crl.) No. 51/2018.

On the first date of hearing, i.e. on 06.03.2018, the learned Additional Solicitor General for India (as he was then), on behalf of the respondent, took objection to the maintainability of the petition under Article 32 of the Constitution. On March 8, 2018, the Supreme Court disposed of the Writ Petition, thinking it appropriate that the High Court be approached, and passed a direction that,

“If the petitioner files an application for interim relief, we request the Bench that is going to be constituted, to deal with the same in accordance with law.”

Evidently, Karti had not failed to “pursue the same”, but was only directed to agitate all the grounds taken therein before the High Court, and the High Court was tasked with taking a decision on any prayer for interim relief.

When the matter came up for hearing pursuant to the aforesaid directions before the “particular Division Bench” comprising Justice S Muralidhar and IS Mehta, the Constitutionality of Section 19 of the PMLA was agitated. The said Division Bench was persuaded to grant interim relief to the petitioner till the next date of hearing. Such interim relief was continued by the Supreme Court.

The order dated March 9, 2018 granting interim relief to Karti nowhere makes reference to the decision in Rajbhushan’s case. Moreover, Karti, unlike Rajbhushan, had challenged the Constitutional validity of Sections 19 and 24 of the PMLA. Lastly, and perhaps most importantly, Karti’s petition was not a Habeas Corpus Petition, as Karti had not been arrested by the Enforcement Directorate in the said case. The Supreme Court has permitted High Courts, even when entertaining petitions under Section 482 CrPC, to issue directions in the nature of “no coercive steps” (State of Telangana v. Habib Abdullah Jeelani).  

The narrative in the article by insinuating promptitude (without adverting to the wholly different facts of the case), and reliance on Rajbhushan, is inaccurate and borders on misrepresentation. The following statement in the article would indicate why:

“It must be noted that both Rajbhushan Dixit and Karti Chidambaram were produced before the relevant Magistrate within 24 hours and remand orders were passed in accordance with the CrPC and therefore, the maintainability itself of such Habeas Corpus petitions is highly questionable.”

There was no occasion for Karti to have been produced before a Magistrate by the ED, since he had not been arrested. Treading on the fictitious depiction in the article, by assuming Karti’s petition was a Habeas Corpus, and assuming that Karti had been arrested by the ED, and remanded by a Magistrate, Karti would still be entitled to release inter alia in view of Madhu Limaye.

The article also refers to S Gurumurthy’s tweet, in respect of which separate proceedings for contempt of court stand initiated and are pending. Judges do not very often get a chance to respond to allegations against them, and when they do, albeit innocuously, by passing an order suo motu to banish any doubts, they are subject to words such as those used in the article (“unprecedented move”…”stopped short of…contempt notice”). In fact, the order dated March 12, 2018 categorically states that,

“While a fair and informed critique of judgments and orders of the Courts is welcome, it is for the learned ASG and the Bar to consider whether such tweets call for action in accordance with law.”

Evidently, the Court did not “stop short of issuing a contempt notice”. Such depiction would indicate that the Court took some action, but stopped short of going the whole hog. What the “particular Division Bench” did on March 12, 2018, was only to place facts on record. Separately, S Gurumurthy has shown his affinity to taking recourse to laws of defamation, by sending a legal notice to the Economist in respect of an article questioning his credentials.

The Neeraj Singal case

The article also relies upon Neeraj Singal v. Union of India. The “particular Division Bench” in this case comprised Justice S Muralidhar and Justice Vinod Goel. This was not the same Division Bench as the one that had decided the previous two cases. The case was heard on five dates, during which time the respondent placed on record his note on submissions running into 43 pages. The Constitutional validity of Sections 212(6) and 212(7) of the Companies Act, 2013, was challenged by Singal.

In a detailed 35-page order, this Division Bench noted that “the attempt by the SFIO to exclude the CrPC at this stage is prima facie not convincing”. Thus, it effectively stated that the power to arrest has to be in accordance with procedure established by law. It was also noted that considering the nature of penal provisions involved and the time period when the alleged illegalities were committed by Singal, an arguable question was raised as to whether such provisions could be applied retrospectively.

Reliance placed on Manubhai Ratilal Patel v. State of Gujarat to indicate how such interim prayers were not maintainable, also appears to be misplaced since Manubhai itself states that,

“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.”

Accordingly, being presented with a situation in which remand orders were passed in a case in which penal provisions were being applied retrospectively, the High Court granted interim relief to Singal.

In respect of how the Supreme Court adjourned the SLP from the order releasing Singal to the next date, during which period Singal was released, the article describes the Supreme Court as having taken “strong objection” to the haste with which the process took place. The process is in itself the subject matter of another post, but it would be worth noting that when the SLP was mentioned on the same date as the order having been passed, the Supreme Court did not stay the proceedings despite the same having been sought vehemently.

The depiction in the article of the actions of the “particular Division Bench” in directing the special court to not waste any time as the matter concerned liberty of an individual, as ‘unusual’ shows prosecutorial disdain towards the concept of liberty.

The Gautam Navlakha case

The “particular Division Bench” in this case comprised Justice S Muralidhar and Justice Vinod Goel. The author’s disdain for the record while engaging in a factual narrative of the case is once again borne out of the record. The record indicates that the Habeas Corpus petition was heard by the roster bench for the first time on August 28, 2018, much before any “obvious laches” had set in, since Navlakha was also arrested on August 28, 2018.

The “particular Division Bench” also noted that the documents produced before the Magistrate to indicate the need for Navlakha’s custody were in Marathi, and the translated copy of the FIR did not bear Navalkha’s name. Surely, the High Court can exercise powers to examine the non-applicability of judicial mind by a Magistrate within its jurisdiction, while such Magistrate exercises powers under Section 167(2) CrPC. This is borne from a plain reading of Manubhai Ratilal Patel. Moreover, this was not the “fourth time” in nine months that relief in the nature of bail in a Habeas Corpus was granted.

Summing up, the article, while illusorily tight, is largely untrue to the factual record. Most recently, another Division Bench of the Delhi High Court, comprising Justice Siddharth Mridul and Justice Sangeeta Dhingra Sehgal, once again permitted interim relief in the nature of bail in a Habeas Corpus petition (Mukesh Modi v. Union of India decided on December 20, 2018). This order stands challenged (without having been stayed) and is listed for hearing before the Supreme Court on January 23, 2018.

The majesty of the Delhi High Court in passing judgments that have tested investigating agencies who have acted in a manner that is not as per procedure established by law is unparalleled. Judgments such as J Sekar (also authored by Justice Muralidhar and Justice IS Mehta), which has been stayed by the Supreme Court pending final hearing, and Mahanivesh Oils (authored by Justice Vibhu Bakhru), call for separate posts within themselves.

Adit Subramaniam Pujari is an advocate at the Supreme Court of India. The views expressed above are of the author and do not necessarily reflect the views of Bar & Bench.

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