Post-cognizance remand and constitutional review: police custody is barred under Section 309, and Articles 226/227 remain available.

After cognizance of an offence, Section 309 of the Code of Criminal Procedure contemplates remand in custody for the purpose of adjournment or trial, but not remand to police custody; once cognizance is taken, the custody envisaged is judicial custody, and police custody is not authorised for further investigation at that stage. The text also states that a statutory bar on appeal or revision under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act does not exclude the High Court's constitutional jurisdiction under Articles 226 and 227, especially where the challenged order is alleged to be without jurisdiction and no effective alternate remedy exists.

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Issues: (i) Whether, after cognizance of an offence has been taken, a court can remand an accused to police custody under Section 309 of the Code of Criminal Procedure, 1973; and (ii) whether the bar of appeal and revision under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ousts the High Court's jurisdiction under Articles 226 and 227 of the Constitution of India.

Issue (i): Whether, after cognizance of an offence has been taken, a court can remand an accused to police custody under Section 309 of the Code of Criminal Procedure, 1973.

Analysis: Section 167 of the Code governs custody during investigation and expressly empowers the Magistrate to authorise detention in such custody as may be thought fit, including police custody. Section 309, by contrast, operates after cognizance and permits adjournment or postponement of inquiry or trial with remand of the accused if in custody. The wording of Section 309 does not confer a choice between police and judicial custody, and its scheme, read with the Code as a whole, indicates that once cognizance has been taken the custody contemplated is judicial custody and not police custody. The court further noted that the process issued after cognizance is to secure attendance for trial and that no provision authorises police custody at that stage for further investigation.

Conclusion: After cognizance, Section 309 of the Code of Criminal Procedure, 1973 does not authorise remand to police custody. The impugned police custody remand was without jurisdiction and liable to be quashed.

Issue (ii): Whether the bar of appeal and revision under Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 ousts the High Court's jurisdiction under Articles 226 and 227 of the Constitution of India.

Analysis: An order granting or refusing bail or custody was treated as interlocutory in nature, and therefore the statutory appellate route did not provide an effective remedy on the facts of the case. More importantly, the constitutional powers under Articles 226 and 227 are not curtailed by a statutory bar on appeal or revision. Where the challenged order is alleged to be wholly without jurisdiction, the existence of an alternate remedy does not prevent the High Court from exercising its extraordinary jurisdiction.

Conclusion: Section 19 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 did not bar the High Court from entertaining the writ petition under Articles 226 and 227 of the Constitution of India.

Final Conclusion: The order directing police custody was set aside, and the High Court exercised its constitutional jurisdiction to grant relief because the remand order lacked legal authority.

Ratio Decidendi: After cognizance of an offence, Section 309 of the Code of Criminal Procedure, 1973 permits remand only to custody and not to police custody, and statutory restrictions on appeal or revision do not exclude the High Court's constitutional power to correct a jurisdictional error.

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