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The Supreme Court has observed that the act of directing remand of an accused is a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition.
The act of directing remand of an accused is a judicial function &challenge to the order of remand is not to be entertained in a habeas corpus petition, observed the Supreme Court bench of Justice AM Sapre and Justice UU Lalit.
Serious Fraud Investigation Office had filed an appeal against the order of the Delhi High Court in a habeas corpus petition, which was allowed by the bench. The Court held that submission of the report under Section 212(3) of the Companies Act, 2013 is directory in nature.
It was contended before the High Court by Rahul Modi and Mukesh Modi that, all further proceedings including the arrest of the respondents were illegal and without any authority of law with the expiration for the investigation period which had to be completed in terms of order dated 20.06.2018.
The High Court considered the question, whether the High Court can test the correctness, legality and validity of an order for remand, passed by a competent Magistrate, in a proceeding for Haeas Corpus under Article 226 of the Constitution of India.
Granting bail to the accused, the High Court in its order stated that, there was no justification to continue the illegal detention; merely on account of the circumstance that the concerned Magistrate has rendered remand orders
The Supreme Court bench noted that the date when the matter was considered by the High Court and the Order was passed by it, Judicial Magistrate and the Special Court, Gurugram had passed the orders of remand but an extension order was also passed by the Central Government on 14.12.2018.
"The legality, validity and correctness of the order or remand could have been challenged by the original Writ Petitioners by filing appropriate proceedings. However, they did not raise such challenge before the competent Appellate or Revisional Forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After going into the relevant issues on merits, the accused were remanded to further police custody. These orders were not put in challenge before the High Court,”observed the bench.
The Apex Court disagreed with the order of the High Court and entertained the plea of Habeas Corpus.
The bench observed:
"It is true that the arrest was effected when the period had expired but by the time the High Court entertained the petition, there was as order of extension passed by the Central Government on 14.12.2018. Additionally, there were judicial orders passed by the Judicial Magistrate as well as the Special Court, Gurugram, remanding the accused to custody. If we go purely by the law laid down by this Court with regard to exercise of jurisdiction in respect of Habeas Corpus petition, the High Court was not justified in entertaining the petition and passing the Order."
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