Bench: S Sandhawalia, M Varma, R Prasad
Appellant: Ramesh Kumar Ravi
Respondent: State of Bihar
Issue
I. Whether a Magistrate has no jurisdiction to pass an order of remand unless an application or a request to that effect is made by the Police or the prosecution?
II. Whether the physical production of the accused before the Magistrate for the purpose of remand is so mandatory that a failure to do so would vitiate the same even if the circumstances for non-production were beyond the control of the prosecution and the Police ?
III. Whether a defect or illegality in the order of a remand of an accused person is incurable and he can claim a writ of habeas corpus despite the fact that on the date of hearing he is in custody under a valid order of remand ?
IV. Whether the judicial orders of a Criminal Court (stricto sensu) under the Code of Criminal Procedure, are amenable to quashing by a writ of certiorari?
Facts
• The petitioner was arrested and subsequently he was produced before the Chief Judicial Magistrate. He contended this was beyond the mandated period of twenty-four hours. However, the Chief Judicial Magistrate directed that he be produced Judicial Magistrate Darbhanga, for recording his statement under Section 164 of the Code of Criminal Procedure.
• The petitioner was, however, not produced before the said Magistrate on that date and instead was produced later. He did not make any statement before the said Magistrate and was consequently directed to be produced before the Chief Judicial Magistrate which was done on the same date and here mended him to jail custody.
• He was again produced before the Chief Judicial Magistrate, who remanded him further awaiting the receipt of the final form.
• It is the petitioner's case that no application or prayer was made by the Police or prosecution for any further remand. A petition for bail was moved on behalf of the petitioner before the Chief Judicial Magistrate on the ground that his remand was illegal. This application was heard by the learned Magistrate and he rejected the same on the same day.
• Thereafter the petitioner moved the learned Sessions Judge for bail on the same ground who held that the remand of the petitioner could not be said to be illegal and rejected the bail application.
• Aggrieved by the order of the learned Chief Judicial Magistrate and of the learned Additional Sessions Judge, the Petitioner approached the Court.
• The correctness of which was challenged on behalf of the State and consequently the application was admitted for hearing by a Division Bench.
Appellant s Contentions
• There existed no power in the Magistrate to suo motu direct the remand in custody of the petitioner in the absence of a formal application and, in any case, a positive request to that effect by the Police.
• It is manifest from both the orders that no application on behalf of the investigating agency was moved for the remand of the petitioner and this apart there does not even appear a positive prayer or request on its behalf for any further remand.
• That unless the accused person is personally present before the Court, the latter is denuded of any power to remand further.
• The petitioner not having been produced before the Magistrate within twenty-four hours and no specific request for his further remand having been made on the date and having not been physically produced before the Magistrate on another, were fatal defects for which there was no subsequent cure by passing valid orders of remand.
Respondent s Contentions
• The physical production of an accused before a Magistrate is necessary immediately after the arrest, it was contended that this was so with regard to the first production only and not to the subsequent ones.
• That no great rationale or principle required physical production of every accused after every fifteen days or less before the Magistrate merely for presentation if no meaningful legal proceedings are as yet to be taken up against him.
• The remand of the petitioner on the date of the return or the date of the hearing was beyond the pale of challenge and the earlier infirmities, if any, were of little or no relevance.
• Barring a routine and solitary marginal reference to habeas corpus, in the whole of the petition the sum and substance of the present criminal writ was for quashing of the orders of the learned Chief Judicial Magistrate.
Judgment
In the light of the above, the stand of the respondent state by way of preliminary objection was sustained and it as held that the present writ jurisdiction case seeking primarily the quashing of the judicial order of the Chief Judicial Magistrate and the learned Sessions Judge is not maintainable.
Relevant Paragraphs
9. To conclude on this aspect, the answer to question (i) is rendered in the negative and it is held that a Magistrate has jurisdiction to pass an order of remand despite the absence of any formal written application or a request for such remand being made by the Police or the prosecution.
19. To finally conclude on this aspect the answer under question No. (ii) is rendered in the negative. It is held that though physical production of the accused before the Magistrate is desirable, yet the failure to do so would not per se vitiate the order of remand if the circumstances for non-production were beyond the control of the prosecution or the Police.
24. To sum up on question No. (iii), the answer thereto is rendered in the negative. It is held that the true test for the legality or otherwise of the detention is on the date of the hearing itself. A defect in an earlier order of remand of an accused person is not incurable and he cannot claim a writ of habeas corpus on that score alone if on the date of hearing he is in custody under a valid order of remand.
36. In the light of the foregoing discussions the answer to the question No. (iv) posed at the very outset is rendered in the negative and it is held that the judicial orders of a criminal court stricto sensu under the Code of Criminal Procedure are not amenable to quashing by a writ of certiorari.
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