4. RELEVANT DATE TO DECIDE ILLEGALITY OF DETENTION IN HABEAS CORPUS
The A summary report filed to the Magistrate where case is re-Investigated on directions of superior and accused is arrested for this purpose. The Bail application u/s 437 filed but withdrawn. There is no challenge made to 14 days remand order passed by magistrate also. They claiming bail under Habeas corpus petition under Article 226 r/w Section 482 to quash the FIR + Bail because it was illegal custody. The alternative remedy under Section 439 already pending and it is a pre-trial stage where merit cannot be looked into. It is prayed that Re-Investigate was not legal and therefore the arrest also illegal and this is the reason for pressing habeas corpus instead of bail.
Ajay Kumar Parmar Vs. State of Rajasthan the Hon’ble Supreme Court has held that when the Magistrate decided not to take cognizance of the case and to drop the proceeding against accused it is mandatory to hear complainant or informant by issuing him notice
Relevant date to determine if detention was legal
In Sanjay Dutt v. State through CBI, Bombay (II) 10 wherein it has been opined thus: “48. … It is settled by Constitution Bench decisions that a petition seeking the writ of Haber corpus on the ground of absence of a valid order of remand or detention of the accused, has to be dismissed, if on the date of return of the rule, the custody or detention is on the basis of a valid order.”
Interim Bail under Article 226/ 482
In State of Telangana vs. Habib Abdullah Jeelani& others, their Lordships have observed that the Courts have to ensure such a power under Article 226 of the Constitution of India is not to be exercised liberally so as to convert it into section 438 of Cr.P.C. proceedings
The legislature has provided specific remedy under Section 439 Cr.P.C. for applying for regular bail. Having regard to the alternate and efficacious remedy available to the petitioner under section 439 of the Code of Criminal Procedure, this Court has to exercise judicial restraint while entertaining application in the nature of seeking regular bail in a petition filed under Article 226 of the Constitution of India read with section 482 of Code of Criminal Procedure.
A Summary report &Power of Re-Investigate
RULE 219 (3) OF BOMBAY POLICE MANUAL - “A’ True, undetected (where there is no clue whatsoever about the culprits or property or where the accused in known but there is no evidence to justify his being sent up to the Magistrate (for trial), “B” Maliciously false and “C” Neither true nor false, e.g., due to mistake of fact or being of a civil nature.Before carrying out the said investigation, the Magistrate was intimated about the further investigation. Thereafter, even the statements are recorded under section 164 of the Code of Criminal Procedure after obtaining permission from Chief Judicial Magistrate. In our opinion, the further investigation cannot be termed as illegal and without seeking permission of the Magistrate. The same is in consonance with the power conferred by section 173 (8) of Code of Criminal Procedure
Vinubhai Haribhai Malaviya & another vs. State of Gujarat, To say that a fair and just investigation would lead to the conclusion that the police retain the power, subject, of course, to the Magistrate’s nod under Section 173(8) to further investigate an offence till charges are framed, but that the supervisory jurisdiction of the Magistrate suddenly ceases midway through the pre-trial proceedings, would amount to a travesty of justice, as certain cases may cry out for further investigation so that an innocent person is not wrongly arraigned as an accused or that a prima facie guilty person is not so left out. There is no warrant for such a narrow and restrictive view of the powers of the Magistrate, particularly when such powers are traceable to Section 156(3) read with Section 156(1), Section 2(h), and Section 173(8) of the CrPC, as has been noticed hereinabove, and would be available at all stages of the progress of a criminal case before the trial actually commences. It would also be in the interest of justice that this power be exercised suomotu by the Magistrate himself, depending on the facts of each case. Whether further investigation should or should not be ordered is within the discretion of the learned Magistrate who will exercise such discretion on the facts of each case and in accordance with law. If, for example, fresh facts come to light which would lead to inculpating or exculpating certain persons, arriving at the truth and doing substantial justice in a criminal case are more important than avoiding further delay being caused in concluding the criminal proceeding. The Power of the Court to order further investigation is different from the State’s power to order further investigation, depending upon the nature of summary i.e., “A”, “B” or “C”. Merely because the Magistrate has accepted the “A” summary submitted by the Investigating Officer, that would not mean and preclude the concerned Investigating Officer to invoke the provisions of section 173(8) of Code of Criminal Procedure to commence further investigation after giving intimation to the jurisdictional Magistrate
The petition and application for interim protection proceeds on the premise that the petitioner is illegally detained.However, on the date of filing the petition and the application, the applicant – petitioner was in judicial custody as it is averred by the petitioner himself .
The petitioner has an alternate and efficacious remedy under section 439 of the Code of Criminal Procedure to apply for regular bail. Thus, Interim relief of bail refused as the detention was legal and there is alternative remedy available.
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