Remand orders cannot be challenged in Habeas Corpus Petitions, Supreme Court [Read Judgment]

Remand orders cannot be challenged in Habeas Corpus Petitions, Supreme Court [Read Judgment]

Meera Emmanuel

The Supreme Court of India has held that remand orders cannot be challenged by way of Habeas Corpus Petitions. The Bench of Justices UU Lalit and AM Sapre relied on several case laws to reiterate that,

The act of directing remand of an accused is …. held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition.

The judgment was passed in an appeal filed by the Serious Fraud Investigating Office (SFIO) against the release of two persons arrested in SFIO proceedings against the Adarsh Group of Companies and LLPs by the Delhi High Court.

The SFIO proceedings were initiated based on a Central Government order in June 2018. Inter alia, the order stated that the SFIO should submit its report within three months. This three month period expired in September 2018. However, the SFIO thereafter arrested three persons in the matter, after obtaining the Central Government’s approval, on December 10, 2018. All three persons were produced before a Judicial Magistrate in Gurugram the following day.

The Magistrate, in turn, allowed a plea for extension of remand until December 14. Thereafter, on the instructions of the Magistrate, the three accused were produced before a Special Court in Gurugram on December 14. The Special Court extended the remand of all three until December 18 first, and thereafter until December 21. On December 14, the Central Government also granted an extension for completion of the investigation to the SFIO until June 30, 2019.

Meanwhile, on December 17, two of the detained persons (respondents) filed a Habeas Corpus petition before the Delhi High Court, contending that their arrest was illegal, to begin with. It was their case that the SFIO’s mandate over the case expired in September 2019, when they were expected to file their investigation report. Therefore, it was contended that their arrest in December was illegal and deserved to quashed.

The High Court opined that there was prima facie merit in their contention and ordered their release in the Habeas Corpus Petition (HCP)  filed by them. This order, passed on December 18, was challenged by the SFIO before the Supreme Court.

Solicitor General Tushar Mehta argued for the SFIO, assisted by Advocates Amit Mahajan and Kanu Agrawal. Arguments for the respondents were led by Senior Counsel Kapil Sibal, Mukul Rohatgi and Sidhharth Luthra, assisted by Advocate Supriya Juneja.

Solicitor General of India, Tushar Mehta
Solicitor General of India, Tushar Mehta

The Supreme Court, in turn, faulted the High Court for having entertained the Habeas Corpus plea, when there were valid orders of remand subsisting at the time.

In the present case, as on the date when the matter was considered by the High Court and the Order was passed by it, not only were there orders of remand passed by the Judicial Magistrate as well as the Special Court, Gurugram but there was also an order of extension passed by the Central Government on 14.12.2018…

… The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After going into the relevant issues on merits, the accused were remanded to further police custody. These orders were not put in challenge before the High Court. It was, therefore, not open to the High Court to entertain challenge with regard to correctness of those orders.”

The Bench emphasised that these remand orders could only be challenged by invoking ordinary appellate or revisional jurisdiction. It was observed that invoking Habeas Corpus jurisdiction in such matters would be inappropriate. Pertinent observations made to this effect include,

The legality, validity and correctness of the order or remand could have been challenged by the original Writ Habeas Corpus Petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent Appellate or Revisional Forum.

… It is true that the arrest was effected when the period had expired but by the time the High Court entertained the Habeas Corpus petition, there was as order of extension passed by the Central Government on 14.12.2018.

Additionally, there were judicial orders passed by the Judicial Magistrate as well as the Special Court, Gurugram, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of Habeas Corpus petition, the High Court was not justified in entertaining the Habeas Corpus petition and passing the Order.”

Time Limit set for submission of Investigation Report by SFIO only directory

Incidentally, the Court also had occasion to clarify that there is no mandatory time limit within which the SFIO has to complete its investigation. The Delhi High Court had ordered the release of the two detainees on the ground that they had been arrested after the expiry of the three-month period initially set for the SFIO to submit its report. However, the SFIO argued that any time limits set were only directory and not mandatory. (Habeas Corpus)

The Supreme Court agreed with the SFIO’s stance on this aspect, particularly given that there were no adverse consequences which would follow if the investigation is not concluded within the time set for the submission of the report. As noted in the judgment,  (Habeas Corpus)

“… It is well settled that while laying down a particular procedure if no negative or adverse consequences are contemplated for non-adherence to such procedure, the relevant provision is normally not taken to be mandatory and is considered to be purely directory. Furthermore, the provision has to be seen in the context in which it occurs in the Statute. 

it cannot be said that the prescription of period within which a report is to be submitted by SFIO under sub-Section (3) of Section 212 [of the Companies Act, 2013] is for completion of period of investigation and on the expiry of that period the mandate in favour of SFIO must come to an end. If it was to come to an end, the legislation would have contemplated certain results including re-transfer of investigation back to the original Investigating Agencies which were directed to transfer the entire record under sub-Section (2) of Section 212.

In the absence of any clear stipulation, in our view, an interpretation that with the expiry of the period, the mandate in favour of SFIO must come to an end, will cause great violence to the scheme of legislation.

The Court therefore concluded,

It cannot therefore be said that in the instant case the mandate came to an end on 19.09.2018 and the arrest effected on 10.12.2018 under the orders passed by Director, SFIO was in any way illegal or unauthorised by law. In any case, extension was granted in the present case by the Central Government on 14.12.2018. But that is completely besides the point since the original arrest itself was not in any way illegal. In our considered view, the High Court completely erred in proceeding on that premise and in passing the order under appeal.

The Delhi High Court judgment was thus set aside. The respondents were directed to surrender themselves before the Special Court at Gurugram on April 1.

Read the Judgment:

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