Allahabad HC says Supreme Court judgments on illegal custody have opened Pandora's Box; declares them as non-binding

The Allahabad High Court recently flagged that a number of accused are filing habeas corpus petitions to challenge their detention even after rejection of their bail pleas up to the level of Supreme Court [Neeraj And Another v State of UP and Another].A Bench of Justice Siddharth and Justice Vinai Kumar Dwivedi added that such accused rely upon Supreme Court’s latest rulings which state that the initial defect in remand of the accused is incurable and that fundamental rights can be enforced at any stage of a case. The situation is chaotic, the Bench said, adding that if it is permitted to continue, accused persons will continue to file habeas corpus petitions “at will” to assert their fundamental rights under Article 22(1) of the Constitution of India irrespective of the stage of investigation or trial.“Therefore, in the absence of any fetters on the right of accused to approach this court challenging his initial arrest, a pandoras box has been opened and the petitions are being filed after cognizance on charge sheet, framing of charge and remand orders under Sections 209 and 309 Cr.P.C and also during recording of evidence in trial,” the Bench said..The Court said that it is faced with two sets of judgments of the Supreme Court on the question of arrest, remand and illegal detention.It noted that the old judgments stated that writ of habeas corpus cannot be granted where a person is committed to jail custody on the basis of an order which is without jurisdiction or wholly illegal.“On the other hand, the second set of judgments of the Hon'ble Supreme Court do not put any fetter on the rights of a person to prefer habeas corpus petition before the court at any stage of the investigation / trial on the ground that if the initial order of remand is illegal, the infirmity goes to the root and is incurable at subsequent stages of investigation / trial,” the Court added.The Court observed that the second set of judgments have opened “flood gates” for the persons in detention to approach the courts at any stage of investigation or trial to claim that their initial remand order was illegal.“In view of the second set of judgments of the Apex Court in the case of Vihan Kumar (Supra) and others, we are faced with queer situation on account of irreconcilable views of the Apex Court in two sets of the judgments considered hereinabove,” it added..The Court made the observations while dealing with a petition moved by a man, who is accused of dowry death and murder of his wife and one-year-old daughter. A bail plea of the accused was already dismissed by the trial court. Two years after arrest, he challenged his custody alleging that it was illegal as due process was not followed by the police and remand magistrate..After examining the two sets of judgments of the Supreme Court, the High Court opined that validity of initial detention and subsequent detention orders can be considered “as the basis of maintaining the habeas corpus petition” only till the investigation is in progress.“Once investigation is concluded, charge sheet is submitted an order of cognizance on charge sheet is passed, the right to challenge the initial illegality in the order of remand cannot be enforced. The order of cognizance of the court can always be assailed by resort to appropriate statutory remedy provided under the provisions of the Cr.P.C / B.N.S.S,” the Bench added.It explained that the initial order of remand passed by the magistrate loses its significance once cognizance is taken on the charge-sheet submitted by the Investigating Officer. The Court ruled that the filing of a writ petition for habeas corpus after passing of the judicial order of remand and subsequent orders taking cognizance of the offence, committal of the case and framing of charge, cannot be justified.“The first set of earlier judgments of the Apex Court, wherein it has been held that the legality of detention in a habeas corpus petition is to be examined with reference to the order subsisting on the date of return of the rule, were rendered after considering the entire scheme of criminal procedure and trial. However, the second set of recent judgments do not appear to have considered the aforesaid earlier pronouncements of the Apex Court,” the Bench said.Thus, the Court ruled that the second set of judgments of the Supreme Court “are not binding precedents and hit by the principles of stare decisis.”"The above consideration of the second set of judgments in the cases of Vihan Kumar; Prabir Purkayastha; Pankaj Bansal; Mihir Rajesh Shah; Kasi Reddy and Upendra Reddy appears to be hit by the principles of stare decisis." It also declared that rejection of bail application of accused by High Court or the Supreme Court would be a bar to entertainment of habeas corpus writ petition against custody of accused..In this backdrop, the Court noted that a trial court had already taken cognizance of the chargesheet filed against the present petitioner. It added that even the examination of witnesses has started before the trial court after framing of charges against him.“The petitioner has approached this court at extremely belated stage questioning the illegality in the initial remand order, without even mentioning its date and bringing the same on record of the writ petition, when the trial has commenced and statements of prosecution witnesses are being recorded. The challenge of the petitioner to his initial arrest is neither bona fide nor legal. The habeas corpus petition has no merit and deserves to be dismissed,” the Court said..Advocate Anupam Verma appeared for the petitioner.Additional Advocate General Manish Goyal with Additional Government Advocate Roopak Chaubey represented the State. [Read Judgment]