Habeas corpus detention challenge failed after a later remand order cured the custody defect before hearing.

Detention was not treated as illegal where a complaint had been filed but cognizance had not yet been taken, so the Section 309 CrPC stage had not commenced. Although an earlier judicial custody remand application became infructuous and no fresh remand order was passed on 24 January 2023, the legality of detention in habeas corpus is assessed with reference to the date of hearing or return. A subsequent remand order passed on 14 February 2023 cured the earlier defect in custody, so the writ of habeas corpus was not warranted.

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Issues: Whether the petitioner's custody was illegal for want of a valid remand order after filing of the complaint and, if so, whether a writ of habeas corpus could be issued for release.

Analysis: The complaint had been filed, but no cognizance had yet been taken, so the stage under Section 309 of the Code of Criminal Procedure, 1973 had not commenced. The earlier application for judicial custody remand was treated as infructuous on 13 January 2023, and no further remand order was passed on 24 January 2023. However, in habeas corpus proceedings, the legality of detention is to be tested with reference to the date of return or hearing, not merely the date of filing. Before the returnable date, the Special Judge passed a remand order on 14 February 2023, thereby curing the defect in custody.

Conclusion: The detention could not be treated as illegal on the date when the writ was considered, and no writ of habeas corpus was warranted.

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