The Supreme Court, in its order dated September 5, 2018, reiterated that no writ of habeas corpus could be issued in respect of a person who was in police custody in connection with a criminal case under investigation pursuant to a remand order by the Magistrate.
In the present matter before the Supreme Court, admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the respondent on 18th/19th March, 2018 and decided by the High Court on March 21, 2018. Accused Rizwan Alam Siddiqui was in police custody pursuant to an order passed by the Magistrate granting his police custody and which police remand was to be ensured till March 23, 2018. Further, without challenging the order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus.
The bench comprising Chief Justice of India Dipak Misra, Justice AM Khanwilkar and Justice DY Chandrachud, referring to judgements in Saurabh Kumar through his father v. Jailor, Koneila Jail and Manubhai Ratilal Patel v. State of Gujarat and Ors., observed that “In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during the investigation of a criminal case.”
Allowing the appeal, the bench said that “The High Court, in our opinion, should not have taken umbrage to the submission made on behalf of the Deputy Commissioner of Police that the respondent’s husband could be released if so directed by the Court. As aforesaid, the DCP had no other option but to make such a submission. For, he could not have voluntarily released the accused who was in police custody pursuant to a judicial order in force.”