Of Habeas Corpus, Remand Orders and Contempt
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Of Habeas Corpus, Remand Orders and Contempt

Bar & Bench

Kanu Agrawal

Ever since the change of roster at the turn of the year, the criminal writ jurisdiction of the Delhi High Court has been in the limelight. With multiple high-profile criminal investigations under various special Acts (criminal law enactments dealing with a specific set offences of money laundering, serious fraud by companies, narcotics/smuggling, etc) gaining speed, the Delhi High Court has seen some high voltage drama.

The modus operandi of the accused persons is similar and indeed ingenious – an amphibious petition having ingredients of both, habeas corpus and a writ under Article 226. Typically, these petitions challenge the constitutionality of some provisions of the special Acts and seek interim relief in the nature of bail or otherwise at the same time.

Judgments prior to the change of roster

Applicability of Chapter 12

Prior to the change of the roster, the question of applicability of Chapter 12 of the CrPC to investigation by the Enforcement Directorate (ED) under the Prevention of Money Laundering Act, 2002 (PMLA) and the constitutional validity of Section 19, providing for the power to arrest, came up in Vakamulla Chandrashekhar v. Directorate of Enforcement.

In June 2017, the said Bench held that Chapter 12 of the CrPC would not be applicable to investigations under PMLA, except for Section 167 CrPC, which deals with production of the arrested person before the relevant judicial authority within 24 hours. It further held that arrests made under Section 19 would have to comply with requirement of Section 41 and Section 41A of the CrPC providing for arrests without magisterial warrants and notice of appearance before Police Officers.

Maintainability of a habeas corpus petition

In December 2017, just before the change of roster, on an arrest made by the ED, a habeas corpus petition was filed which came up before a Division Bench in Moin Akhtar Qureshi v. Union of India & Ors. The Court therein held that a habeas corpus petition would not be maintainable when a remand order has been passed. This follows a long line of cases.

The rationale behind the same is straightforward, as a habeas corpus petition, by its very nature and history surrounding its origin, is filed seeking protection from detention which is without jurisdiction or wholly illegal. It is generally filed when a person is arrested and the authorities fail to produce him before the Magistrate within 24 hours, or when a person is arrested wholly without authority under the relevant law.

In short, habeas corpus is an extraordinary remedy limited for unusual situations wherein the constitutional protections embedded under the criminal procedure are not adhered to or arrests are made without there being any power to do so. Therefore, it was considered that the remedy of habeas corpus is not available once a person is produced before a judicial authority, as said production before the judicial authority triggers the statutory process under the CrPC or the relevant special Act, which cannot be overreached by a writ remedy.

Change of Roster 

The first disagreement

At the turn of the year and the change of the roster, the first notable case to come up before the Division Bench was Raj Bhushan Dixit v. Union of India & Anr, another amphibious petition seeking bail in the garb of challenging the constitutionality of provisions of the PMLA. The Division Bench disagreed with the view taken by the above two judgments, despite the said judgments being grounded in sound Supreme Court precedents, and framed ‘questions of law’ to be referred to a larger bench.

The said reference order also took a contrary view to the Division Bench of the Bombay High Court in Chhagan Chandrakant Bhujbal Vs Union of India, and Punjab and Haryana High Court in Karam Singh & Anr. V. Union of India. While the said disagreement was within the contours of judicial propriety, the Division Bench granted interim bail based on an alleged prima facie doubt over the constitutionality of provisions of the PMLA.

The grant of interim relief on the said ground is hence, highly questionable as every law is presumed to be constitutionally valid until declared otherwise and ‘prima facie unconstitutionality’ is an anathema to any form of power under judicial review or otherwise. This interim order in Rajbhushan kick-started a chain of events which has led to a lingering confusion regarding the interpretation of the Special Acts.

Customs Act question before the old roster bench

Close on the heels of the Rajbhushan interim order, an issue concerning the applicability of Chapter 12 of the CrPC to proceedings under the Customs Act came up before a separate Division Bench headed by the author of the judgments in Vakamulla and Moin Akthar. Taking cognizance of the order of reference in Rajbhushan, the said Division Bench in Mukesh Sahni & Anr. V. DRI & Ors., noted the similarity of the provisions of the PMLA and Customs Act, and referred the questions to be placed before a larger bench.

Therefore, the said Division bench, in line with judicial propriety and in light of the disagreement in Rajbhushan case, thought it would be more appropriate to refer the questions to a larger bench rather than rely on its earlier orders to grant any interim orders thereof.

Karti Chidambaram and the first brush with contempt

The judicial disagreement in Rajbhushan did not go unnoticed and multiple petitions were filed seeking interim relief before the roster bench. At the same time, Karti Chidambaram approached the Supreme Court raising similar questions regarding the PMLA through a writ under Article 32. After failing to pursue the same, Karti Chidambaram approached the Delhi High Court.

Promptly, an order granting interim relief in favour of Karti Chidambaram was again passed by the Division Bench on the basis of the referral order in the Rajbhushan case. 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. Further, the referral order in Rajbhushan case could not be considered to be jurisprudential exposition of law on the subject paving the way for granting interim relief or being regarded as a precedent to extend similar relief in other similar matters.

After the said orders were passed, a Chartered Accountant and political commentator, S Gurumurthy, cast a serious aspersion on the Judge heading the Division Bench in the Rajbhushan Dixit case and the Karti Chidambaram case, alleging a past professional relationship of the judge with a close family member of the accused. The Bench, in an unprecedented move, took suo motu cognizance of the tweet, and clarified to the lawyers for both sides the position of the Hon’ble Judge. The Division Bench stopped short of issuing a contempt notice.

In the meantime, the orders passed in the Rajbhushan Dixit case and Karti Chidambaram case were challenged before the Supreme Court. After detailed arguments on the maintainability of the petitions itself and the manner in which the interim relief was granted, the Supreme Court transferred both the matters pending before the Delhi High Court to itself.

By virtue of the transfer, the larger bench constituted in Rajbhushan Dixit stood extinguished which rendered the referral order a nullity. Thereafter, the separate reference under the Customs Act in Mukesh Sahni was constituted under the aegis of the old roster judge and the said bench, again in line with judicial maturity and propriety, noted the transfer of the Rajbhushan Dixit case and Karti Chidambaram case to the Supreme Court and held that it would be appropriate to await the decision therein.

Neeraj Singal and the SFIO

In August 2018, the Serious Fraud Investigation Office, in a first of its kind case, arrested Neeraj Singal (promoter of Bhushan Steel, with more than 60,000 crore of unpaid public money in bad debt to nationalised/private banks) in connection with a corporate fraud under the Companies Act, 2013 under provisions which provide a similar procedure to the PMLA and the Customs Act.

Similar to previous instances, the arrested person was produced before the relevant Magistrate within 24 hours and a remand order was passed. Despite the same, on an amphibious petition filed by Neeraj Singal, the Division Bench passed an order questioning the ‘prima facie’ constitutionality of the provisions challenged and granted interim relief in the nature of bail. The Division Bench granted such relief despite the pendency of the analogous matters before the Supreme Court, and without considering the case diary to ascertain the gravity of the offence committed by Neeraj Singal – an analysis which is elementary to the grant of bail.

On the same day, the matter came up before the Special Judge, Dwarka Court hearing the matter of Neeraj Singal, who was pleased to list the matter at 2 PM on the next day, on account of some discrepancy in the surety. An appeal from the said order was filed in the Supreme Court on the same day, mentioned at 1 PM and taken up at 3:30 PM before the Supreme Court.

Contemporaneously, on account of the one day adjournment by the Special Judge, the matter was also mentioned before the Division Bench of the Delhi High Court. The Supreme Court, after hearing arguments in appeal for more than 45 minutes, was pleased to list the matter before a bench of two judges on the very next day. The Supreme Court, perhaps expecting a level of deference from the High Court, rather than granting a stay of the order, orally stated that the High Court may be informed of the pendency, presuming that the Division Bench would refrain from effectuating the release.

On the other hand, the Division Bench, after waiting for the arguments in the Supreme Court to get over, remarked that the Supreme Court has in fact not stayed the order and took steps to effectuate the release. Somewhat unusually, the Division Bench directed the Registrar General of the High Court to telephonically inform the judge at the Dwarka Court about the order of the High Court and directed the Special Court to ‘not waste any further time‘ as the matter was concerning the ‘liberty of an individual’.

The next day, the matter was heard by the Supreme Court, which took strong objection to the haste with which the process took place, passed strictures, stayed the order of the Division Bench, and for an unprecedented third time, transferred the proceedings pending before the Division Bench.

Gautam Navlakha and the contempt proceedings

On the same day as the Neeraj Singal order, Gautam Navlakha filed a similar habeas corpus petition, challenging the transit remand order passed by a Special Judge in connection with an arrest made by the Maharashtra Police regarding the Urban Naxal/Bhima Koregaon case. In the meantime, a PIL under Article 32 was also mentioned before the Supreme Court wherein in the interim, all five arrests, including Gautam Navlakha’s, were converted to house arrests. Therefore, the matter before the High Court was adjourned. The Supreme Court heard the matter length, took note of the fact that the case against the arrested persons concerns their links with the members of banned organisations and its activities, and dismissed the petition.

After the said order passed, the habeas corpus came up for hearing and similar arguments regarding the non-maintainability of the habeas corpus were put forth. In this case, the Delhi High Court was not technically the jurisidictional Court as the remand order was actually merely a transit remand, after which a detailed remand order would have been passed in Pune, Maharashtra, where the legal proceedings were to be conducted.

In order to overcome the obvious laches and the fact that the two months had elapsed from the date of the original arrest, the Bench went on a slightly convoluted exercise. It recorded that the arrest was made at 2.15 pm in Nehru Enclave, and given the fact that reasonable time would be taken to reach the Saket Court complex, it is unlikely that the remand order was passed before 2.45 pm. The Court noted that because the factum of the arrest of Gautam Navlakha was mentioned before the Division Bench in the intervening period between 2:15 PM and 2:45 PM, and therefore, the habeas corpus petition would be maintainable as it would be presumed to have been filed before any remand order was passed! The law states that the maintainability of a habeas corpus is to be adjudged at the time of return and not at the time of filing, let alone mentioning the matter without a petition.

Thereafter, the Bench tested the transit remand on the touchstone of a regular remand order without appreciating that such exercise outside the territorial jurisdiction of the investigating agency leads to major practical anomalies. The Bench then remarked that the arrested person was not produced before the Magistrate within 24 hours and explained the grounds of arrest despite the factum of production and transit remand before magistrate. Therefore, for the fourth time in nine months, relief in the nature of bail was extended in a habeas corpus petition despite the passing of remand orders. Out of the four orders, the Supreme Court has thrice transferred the matters and issued notice, in the fourth one.

After the said relief was granted, a fringe website ran a story raising a scandalous allegation of personal bias of the judge in favour of the accused, Gautam Navlakha. The said story was retweeted by S Gurumurthy. Further, the contents of the story were shared by way a tweet thread by Vivek Agnihotri, a Bollywood personality and public commentator. Taking note of this, a “voluntary” complaint/letter was written by an advocate to the Chief Justice of India, a copy of which was forwarded to the Chief Justice of the Delhi High Court.

The Delhi High Court, by way of a separate Division Bench, issued contempt notices to S Gurumurthy, Vivek Agnihotri and the website running the story and granted an injunction against the further publication/repetition of the said story. Thereafter, the zealous “voluntary” complainant sought and succeeded in addition of Anand Ranganathan, the JNU professor and social commentator, and Swarajya Magazine, a mainstream opinion magazine/website amongst others as ‘contemnors’, without there being a direct case of contempt.

Final Remarks

Therefore, since the turn of the year, the particular Division Bench has successively held habeas corpus petitions to be maintainable after passing of remand orders, by digging out any miniscule aberrations in the arrest process/procedure, despite strong contrary precedent on the said point. The Bench has granted interim relief in the nature of bail on a non-existent principle of ‘prima facie constitutionality’ and often extrapolated these issues to standards of quixotic constitutional ideals. This unique mechanism is certainly legally questionable, and ought to be open to criticism. The successive questionable orders in habeas corpus petitions and serious allegations of personal bias portray one side of the story. On the contrary, unproven allegations against judges, without much proof of bias or otherwise, make this situation a legal sticky wicket.

Kanu Agrawal 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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