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A division bench comprising of Justice SS Shinde and Justice NB Suryawanshi dismissed a writ petition where the respondents prayed for their release invoking the principle of Habeas Corpus stating that their judicial custody exceeding 15 days was contrary to the mandate of Section 309(2) CrPC.
The petitioners were accused in a criminal matter registered under IPC and MPID Act, 1999. The counsels for the petitioners pressed that the proviso to Section 309(2) CrPC states a remand of the accused for a period of less than 15 days at a time. In the present case, the judicial order exceeding 15 days violated the provisions of Article 21. The counsel for the state opposed the writ petition. The HC stated that the Section 309(2) CrPC points at the general provision that imposes a restriction that no Magistrate can sentence a person to jail for more than 15 days in case of mere accusation. However the Court went on to observe that “In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions. …on plain reading of section 309(2) of CrPC and its proviso, we are of the considered view that the said provision is clear and unambiguous and the distinction enshrined in provision cannot be read in the main provision of section 309(2) of CrPC to put limitation on the power of the trial Court while exercising the powers under section 309(2) of CrPC” the HC relied on the judgement passed in the case of Saurabh Kumar v. Koneila Jail 2014 13 SCC 436 where the HC had reiterated the fact that the writ of Habeas Corpus was maintainable against the remanding of a judicial order for jail although the proper remedy would be one of bail. The instant petition was thus dismissed.
Harshad Dinanath Bari v. State of Maharashtra, WP No. 2639 of 2019
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