Is a Writ of Habeas Corpus maintainable in case of judicial custody by virtue of a court order? Watch the Arnab Goswami case playing out

The view of the Supreme Court so far is that once a person is arrested and produced before the court and the judicial process under the Code of Criminal Procedure starts rolling, then the remedy lies under the statutory provisions by way of challenging the order of the subordinate court in the superior courts, and not in circumventing the process by way of a writ of Habeas Corpus, points out SHOBHA GUPTA

The recent Habeas Corpus petition by Republic TV Editor-in-Chief Arnab Goswami before the Bombay High Court, challenging his arrest by Raigad Police on November 4 as illegal and thus seeking his immediate release, has raised the issue of maintainability of Habeas Corpus.

This is a case in which an arrest has been made pursuant to an FIR and the person arrested has been duly produced before the competent Court by following the procedure established by law. He has been sent for judicial custody by the jurisdiction Magistrate.

The  High Court of Bombay entertained a  habeas corpus petition and directed listing of the matter on the very next day. Is the petition maintainable at all?  The person concerned is in judicial custody and therefore the custody cannot be said to be illegal. There are several cases pending all over the country,  of social activists, bloggers, journalists, students, etc., where the persons arrested have said that they have been falsely implicated by misuse of power and that their detention is illegal. What is their legal remedy?

Goswami alleges in the High Court that this amounts to a violation of the right to live with dignity and thus claimed his immediate release.

Goswami was arrested in a criminal case that was duly registered, produced in time before the magistrate concerned, and the investigation team sought police remand. The court heard the parties at length and passed an order for judicial custody for 14 days. As a result of the judicial order of custody, he was lodged for 14 days of judicial custody. Not only this, he then immediately filed a bail application, which he withdrew.  The Writ of Habeas Corpus before the High Court was filed simultaneously. Interestingly, all these developments have happened within a span of a day.

The issue of concern here is that whether a writ of Habeas Corpus in such a case would amount to bypassing a statutory remedy or whether such a petition would still be maintainable on the ground that in the opinion of the person arrested, his detention was illegal and amounts to a violation of the right to live with dignity guaranteed under Article 21 of the Constitution of India.

In Deepak Bajaj V/s State of Maharashtra, the Supreme Court held that "the celebrated Writ of Habeas Corpus has been described as 'a great constitutional privilege of the citizen' or 'the first security of civil liberty'." Undoubtedly, the remedy available under Habeas Corpus jurisdiction is a very strong tool made available by our Constitution for protection of the right to live with dignity and against illegal detentions, but can that constitutional remedy be allowed to be exercised to circumvent the process of law prescribed by the Code of Criminal, can a judicial order of custody be challenged by way of a writ of habeas corpus.

Though the law is well settled, but the extraordinary developments and invocation of various remedies by the popular TV Editor, have made it necessary to reflect upon precedents from the past. In Serious Fraud Investigation v. Rahul Modi, the Supreme Court has held that the act of directing remand of an accused is a judicial function and in such case, a Habeas Corpus petition cannot be entertained. In B. Ramachandra Rao v. State of Orissa (1972) 3 SCC 256, the Supreme Court held that a writ of Habeas Corpus cannot be granted where a person is committed to jail custody by a competent court by judicial order.

Similarly, in Manubhai Ratilal Patel v. State of Gujarat, this Court has held that "it is a well-accepted principle that a writ of Habeas Corpus is not to be entertained when a person is committed to judicial custody or police custody by the competent court by an order having jurisdiction". In Saurabh Kumar v. Jailor, Koneila Jail, the apex court court said that the writ of Habeas Corpus in case of custody pursuant to order of remand by a competent court is totally misplaced.

The court further held that even in respect of an illegal order of remand, which was passed mechanically in a cavalier fashion, the remedy of a writ of Habeas Corpus was not found to be an appropriate remedy. The remedy lies in filing a bail application.

In the State of Maharashtra v. Tasneem Rizwan Siddiqui,  the Supreme Court has held that the question as to whether a  Writ of Habeas Corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional magistrate is no more res integra. No writ of Habeas Corpus can be issued in such cases as it cannot be termed as a case of illegal detention when the incumbent was in judicial custody by a virtue of the order of the competent court. The Supreme Court further held that the question of whether the initial order of arrest itself was valid or not, does not anymore remain of any relevance in view of a subsequent judicial order of remand, be it for police custody or judicial custody, and a challenge to such order which is a judicial function cannot be entertained in a Habeas Corpus petition.

The reflection on the issue though would be incomplete without referring to the view recently taken by the Supreme Court in Jagisha Arora v. State of UP, wherein while taking note of the submission of the learned Additional Solicitor General for India, that a writ of Habeas Corpus is not maintainable in view of the continuation of custody pursuant to the remand order, the Supreme Court in its short order has observed that the court was not inclined to sit back on technical grounds. Thus, by exercising power under Article 142 of the Constitution of India the Supreme Court to do "complete justice", directed immediate release of the person arrested, considering that action of arrest for putting a post/tweet on social media, was excessive. It is pertinent to note that the order of release was passed by exercising power under Article 142 of the Constitution of India and not by allowing the Habeas Corpus petition.

Thus, the consistent view of the  Supreme Court has been so far that once the person arrested is produced before the competent court and the judicial process under the Code of Criminal Procedure starts rolling, then the remedy lies under the statutory provisions by way of challenging the order of the subordinate court in the superior courts, and not in circumventing the process by way of a writ of Habeas Corpus.

(Shobha Gupta is a lawyer at the Supreme Court of India. Views are personal.)