Habeas corpus and judicial remand: custody under a subsisting remand order was upheld despite jurisdictional objections.

Appointment of counsel and a special public prosecutor was not impermissible merely by reference to the National Investigation Agency Act, 2008, because the writ was under Article 226, the High Court was not acting as a Special Court under that Act, and the case had not been entrusted to the NIA; the objection to representation failed. Habeas corpus was unavailable against detention pursuant to a subsisting judicial remand order, since the order was not shown to be wholly without jurisdiction or patently illegal. The Additional Sessions Judge was acting under administrative assignment of urgent remand work, and any defect was in any event saved by the de facto doctrine. The remand order was therefore upheld and detention was not illegal.

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Issues: (i) Whether the appointment of counsel and special public prosecutor in the matter was impermissible by reference to the National Investigation Agency Act, 2008. (ii) Whether the Additional Sessions Judge lacked jurisdiction to extend the detenue's judicial remand, so as to render the detention illegal and warrant habeas corpus relief.

Issue (i): Whether the appointment of counsel and special public prosecutor in the matter was impermissible by reference to the National Investigation Agency Act, 2008.

Analysis: The petition sought to invoke the scheme of the National Investigation Agency Act, 2008 to contend that only the statutory mechanism under that Act could regulate representation in the matter. The Court held that the writ was under Article 226 of the Constitution of India, the High Court was not acting as a Special Court under the Act, and the case had not been entrusted to the National Investigation Agency for investigation. In that setting, the provisions relied upon from the Act were held to be inapplicable to the question of representation before the High Court.

Conclusion: The objection to representation was rejected and was against the petitioner.

Issue (ii): Whether the Additional Sessions Judge lacked jurisdiction to extend the detenue's judicial remand, so as to render the detention illegal and warrant habeas corpus relief.

Analysis: The Court held that habeas corpus does not lie where the detenue is in custody pursuant to a judicial order that is not shown to be wholly without jurisdiction or patently illegal. It found that the Scheduled offence provisions of the National Investigation Agency Act, 2008 did not require every UAPA case to be investigated by the Agency or tried only by a Special Court, and that the officer concerned was a Sessions Judge assigned urgent remand work by administrative order under Section 10(3) of the Code of Criminal Procedure, 1973. The Court further held that, even assuming any defect in jurisdiction, the de facto doctrine saved the remand order because the judge acted under colour of authority, and such an order could not be treated as a nullity in collateral proceedings.

Conclusion: The remand order was upheld in the habeas corpus proceedings and the detention was held not to be illegal.

Final Conclusion: The writ petition failed because the detenue's custody continued under a subsisting judicial remand order passed by a competent Sessions Judge, and no ground for habeas corpus relief was made out.

Ratio Decidendi: A writ of habeas corpus will not be granted against custody pursuant to a subsisting judicial remand order unless the order is shown to be wholly without jurisdiction or patently illegal; an order passed by a Sessions Judge acting under colour of authority is not a nullity and is protected by the de facto doctrine in collateral proceedings.

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