1987 (4) TMI 501 - HC - Indian Laws

Magistrate Can Issue Remand Without Police Request; Habeas Corpus Not Applicable if Detention Lawful.

The court ruled that a Magistrate can issue a remand order without a formal request from the Police or prosecution, as sections 167 and 309 of the ... - Issues Involved:1. Jurisdiction of Magistrate to pass a remand order without a request from the Police or prosecution.2. Mandatory physical production of the accused before the Magistrate for remand.3. Incurability of defects or illegality in remand orders and entitlement to habeas corpus.4. Amenability of judicial orders under the Criminal Procedure Code to quashing by a writ of certiorari.Detailed Analysis:Issue (i): Jurisdiction of Magistrate to pass a remand order without a request from the Police or prosecution.The court held that a Magistrate has jurisdiction to pass an order of remand even in the absence of a formal written application or request from the Police or prosecution. The relevant statutory provisions, sections 167 and 309 of the Code of Criminal Procedure, do not expressly mandate any formal application for remand by the prosecution. The power is conferred and vested in the Magistrate without any such pre-condition. The court emphasized that the custody and liberty of the accused are governed by the authority and sanction of a Court of law beyond the initial twenty-four hours post-arrest. The proposition that the Magistrate's power to remand is contingent upon a request from the investigating agency was rejected as untenable and absurd.Issue (ii): Mandatory physical production of the accused before the Magistrate for remand.The court held that while physical production of the accused before the Magistrate is desirable, the failure to do so does not per se vitiate the order of remand if the circumstances for non-production were beyond the control of the prosecution or the Police. The court referred to Article 22(2) of the Constitution and section 167(2)(b) of the Code, emphasizing the legislative mandate for physical production. However, it acknowledged practical difficulties and exceptions, such as the accused being grievously ill or in situations where physical production is impossible. The court cited precedents indicating that the law does not contemplate an impossibility, and non-production due to uncontrollable circumstances does not render the remand illegal.Issue (iii): Incurability of defects or illegality in remand orders and entitlement to habeas corpus.The court concluded that the true test for the legality of detention is the status on the date of the hearing. A defect in an earlier remand order is not incurable, and an accused cannot claim a writ of habeas corpus if, on the date of the hearing, they are in custody under a valid order of remand. The court cited several precedents, including Talib Hussain v. State of Jammu and Kashmir, which held that in habeas corpus proceedings, the court must consider the legality of the detention at the time of the hearing. The court dismissed the contention that earlier defects in remand orders cannot be cured by subsequent valid orders.Issue (iv): Amenability of judicial orders under the Criminal Procedure Code to quashing by a writ of certiorari.The court held that judicial orders of a criminal court under the Code of Criminal Procedure are not amenable to quashing by a writ of certiorari. The court relied on the precedent set by the Supreme Court in Naresh Shridhar Mirajkar v. State of Maharashtra, which established that judicial orders passed by courts of competent jurisdiction are not subject to writ jurisdiction under Articles 226 or 32 of the Constitution. The court emphasized that such orders can be challenged through the judicial remedies provided by law, such as appeal, revision, or inherent jurisdiction under section 482 of the Code, but not through writ proceedings. The court dismissed the writ petition on both grounds of non-maintainability and merits.Separate Judgments:M.P. Varma, J.: Agreed with the judgment, emphasizing that judicial orders cannot be assailed through writ processes and must be addressed through prescribed forums under the Code or Articles 132 to 136 of the Constitution.Ram Nandan Prasad, J.: Concurred with the judgment.