Habeas Corpus Dharma J-1 PDF

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suresh 916-WPOJ-5095.2017.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO.5095 OF 2017
Rajkumar Bhagchand Jain,
Age 57 years, Occupation Service,
Residing at 622 R, Maha Laxmi
Nagar, Bombay Hospital Nagar,
Bombay Hospital Pani ki Tanki
ke Pass, Vijay Nagar,
Indore, Pin Code 452010. .... Petitioner
Versus
1. Union of India
Through C.B.I.,
Office of SP CB EOW, 11th Floor,
CBI building, GBlock, Plot No.C35A,
Bandra Kurla Complex,
Mumbai – 400 001.
2. State of Maharashtra .... Respondents
Mr. Pankaj Jain with Mr. Kedar Khambate, Ms Sweta
Valecha & Ms Yogita Gogar i/by P.D. Jain & Co. for
the Petitioner.
Mr. H.S. Venegaonkar for Respondent No.1UoI.
Mrs. S.V. Sonawane, Addl. Public Prosecutor, for
the RespondentState.
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CORAM: S.C. DHARMADHIKARI &
SMT. BHARATI H. DANGRE, JJ.

DATE : DECEMBER 08, 2017
ORAL JUDGMENT ( Per Shri
S.C. DHARMADHIKARI, J. ) :
1. Rule. The respondents waive service through their
respective counsel. By consent, rule is made returnable forthwith
and the petition is taken up for final disposal.
2. This is a petition seeking a writ of habeas corpus for
release of the petitioner's son Rohit Jain from illegal and
unlawful continued judicial custody after 23112017 till date in
CBI Case No.RC.3/E/2017 CBI EOW.
3. The few facts which are necessary for appreciating
the challenge raised in this petition are that the petitioner's son
was arrested on 1992017 and was produced before the Court
of Additional Chief Metropolitan Magistrate, 3rd Court,
Esplanade, Mumbai on 2092017. The arrest was in relation to
the above case and registered at the instance of the Central
Bureau of Investigation (CBI), Economic Offences Wing,
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Mumbai. The learned Additional Chief Metropolitan Magistrate
granted CBI custody till 2892017. Thereafter, the son was
produced on 2892017 as the CBI custody was extended till
2892017. On second remand, the son was remanded to judicial
custody till 12102017 and which continued till 9112017.
4. Thereafter, on 9112017, a further remand
application was moved and the judicial custody was granted till
23112017.
5. That is how the maximum permissible custody of 60
days, as circumscribed by Section 167(2) of the Code of
Criminal Procedure, 1973, was over.
6. The precise argument is that the petitioner's son was
remanded on 9112017 for an offence punishable with
maximum imprisonment extending to seven years. The Section
167 of the Code of Criminal Procedure reads as under:
“167. Procedure when investigation cannot be

completed in twentyfour hours. (1) Whenever any
person is arrested and detained in custody, and it
appears that the investigation cannot be completed
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within the period of twentyfour hours fixed by section
57, and there are grounds for believing that the
accusation or information is wellfounded, the officer in
charge of the police station or the police officer making
the investigation, if he is not below the rank of sub
inspector, shall forthwith transmit to the nearest
Judicial Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at
the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is

forwarded under this section may, whether he has or
has not jurisdiction to try the case, from time to time,
authorise the detention of the accused in such custody
as such Magistrate thinks fit, for a term not exceeding
fifteen days in the whole; and if he has no jurisdiction
to try the case or commit it for trial, and considers
further detention unnecessary, he may order the accused
to be forwarded to a Magistrate having such
jurisdiction:
Provided that,
(a) the Magistrate may authorise the detention of the
accused person, otherwise than in the custody of the
police, beyond the period of fifteen days, if he is satisfied
that adequate grounds exist for doing so, but no
Magistrate shall authorise the detention of the accused
person in custody under this paragraph for a total
period exceeding,
(i) ninety days, where the investigation relates to an
offence punishable with death, imprisonment for life or
imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any
other offence, and, on the expiry of the said period of
ninety days, or sixty days, as the case may be, the
accused person shall be released on bail if he is prepared
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to and does furnish bail, and every person released on
bail under this sub section shall be deemed to be so
released under the provisions of Chapter XXXIII for the
purposes of that Chapter;
(b) no Magistrate shall authorise detention of the

accused in custody of the police under this section unless
the accused is produced before him in person for the
first time and subsequently every time till the accused
remains in the custody of the police, but the Magistrate
may extend further detention in judicial custody on
production of the accused either in person or through
the medium of electronic video linkage;
(c) no Magistrate of the second class, not specially

empowered in this behalf by the High Court, shall
authorise detention in the custody of the police.
Explanation I. For the avoidance of doubts, it is
hereby declared that, notwithstanding the expiry of the
period specified in paragraph (a), the accused shall be
detained in custody so long as he does not furnish bail.
Explanation II. If any question arises whether an
accused person was produced before the Magistrate as
required under clause (b), the production of the accused
person may be proved by his signature on the order
authorising detention or by the order certified by the
Magistrate as to production of the accused person
through the medium of electronic video linkage, as the
case may be.
Provided further that in case of a woman under
eighteen years of age, the detention shall be authorised
to be in the custody of a remand home or recognised
social institution.
(2A) Notwithstanding anything contained in sub

section (1) or subsection (2), the officer in charge of
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the police station or the police officer making the

investigation, if he is not below the rank of a sub
inspector, may, where a Judicial Magistrate is not
available, transmit to the nearest Executive Magistrate,
on whom the powers of a Judicial Magistrate or
Metropolitan Magistrate have been conferred, a copy of
the entry in the diary hereinafter prescribed relating to
the case, and shall, at the same time, forward the
accused to such Executive Magistrate, and thereupon
such Executive Magistrate, may, for reasons to be
recorded in writing, authorise the detention of the
accused person in such custody as he may think fit for a
term not exceeding seven days in the aggregate; and on
the expiry of the period of detention so authorised, the
accused person shall be released on bail except where an
order for further detention of the accused person has
been made by a Magistrate competent to make such
order; and, where an order for such further detention is
made, the period during which the accused person was
detained in custody under the orders made by an
Executive Magistrate under this subsection, shall be
taken into account in computing the period specified in
paragraph (a) of the proviso to subsection (2):
Provided that before the expiry of the period

aforesaid, the Executive Magistrate shall transmit to the
nearest Judicial Magistrate the records of the case
together with a copy of the entries in the diary relating
to the case which was transmitted to him by the officer
in charge of the police station or the police officer
making the investigation, as the case may be.
(3) A Magistrate authorising under this section

detention in the custody of the police shall record his
reasons for so doing.
(4) Any Magistrate other than the Chief Judicial

Magistrate making such order shall forward a copy of
his order, with his reasons for making it, to the Chief
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Judicial Magistrate.
(5) If in any case triable by a Magistrate as a

summonscase, the investigation is not concluded within
a period of six months from the date on which the
accused was arrested, the Magistrate shall make an
order stopping further investigation into the offence
unless the officer making the investigation satisfies the
Magistrate that for special reasons and in the interests
of justice the continuation of the investigation beyond
the period of six months is necessary.
(6) Where any order stopping further investigation

into an offence has been made under subsection (5),
the Sessions Judge may, if he is satisfied, on an
application made to him or otherwise, that further
investigation into the offence ought to be made, vacate
the order made under subsection (5) and direct further
investigation to be made into the offence subject to such
directions with regard to bail and other matters as he
may specify.”
7. The argument is that the petitioner's son's custody
upto 23112017 is beyond the period of 60 days. It is thus in
clear violation of Section 167 of the Code of Criminal Procedure,
1973. It also violates the fundamental right guaranteed by
Article 21 of the Constitution of India.
8. The son applied for release on bail only on this
ground on 20112017 but that was rejected. That was rejected
on the ground that during the course of investigations the
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prosecution invoked Sections 465, 467, 468 and Section 471 of
the Indian Penal Code and Section 13(2) r/w Section 13(1)(d)
of the Prevention of Corruption Act, 1988, in the same CBI case.
On that basis, it was argued by the CBI that the period for filing
the chargesheet is 90 days instead of 60 days. However, the
statutory bail application being rejected, the petitioner made
inquiries as to whether there was any remand application or any
request made by the prosecution to extend the judicial custody
upon invocation and addition of the provisions of the Prevention
of Corruption Act, 1988. However, there is no record of any such
extension.
9. It is in the above circumstances that it was argued
before us that a writ of habeas corpus be issued if the detention
is ex facie illegal. Meaning thereby, if the detention in custody is
not permitted by law, then, this Court can order release of the
person in such illegal custody and a writ of habeas corpus can be
issued for that purpose.
10. Reliance was placed on several judgments of the
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Hon'ble Supreme Court of India.
11. On the earlier occasion, we had granted time to the
respondents as Mr. Venegaonkar was awaiting instructions.
12. The matter was placed today and both sides were
given a clear understanding that in the event there is no contra
material placed before us, particularly on affidavit of the
respondents, we would pass a final order on the petition.
Despite all persuasive abilities at his command,
Mr. Venegaonkar was unable to point out any contrary material,
particularly on the legal position, as emerging from the decision
of the Hon'ble Supreme Court in the case of Ram Narayan
Singh v. The State of Delhi and others, reported in AIR 1953
SC 277 right upto the recent decision delivered by a Bench
presided over by Hon'ble Shri Justice Dipak Misra, as His
Lordship then was, in the case of Manubhai Ratilal Patel
through Ushaben v. State of Gujarat and others, reported in
AIR 2013 SC 313.
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13. In the circumstances, we are constrained to hold that
the detention beyond the period of 60 days is in clear violation
of Section 167(2) of the Code of Criminal Procedure, 1973. Such
illegal detention in custody cannot be sustained as it is violative
of the right to life and liberty guaranteed by Article 21 of the
Constitution of India. Consequently, on the undisputed facts and
the detention being illegal, writ of habeas corpus can be issued.
We accordingly issue such writ. The rule is, therefore, made
absolute in terms of prayer clause (a). That prayer reads as
under:
“(a) To issue a Writ of Habeas Corpus or any other

appropriate Writ, Order or directions for forthwith
release of the Petitioners Son namely Rohit Jain from the
illegal and unlawful continued Judicial Custody after
23.11.2017 till date in the CBI Case No.RC.3/E/2017
CBI EOW without any order passed by any competent
Court of law for the same and for quashing and setting
aside the Order dated 09.11.2017 remanding the
Petitioner's Son to judicial Custody till 23.11.2017.”
(SMT. BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI, J.)
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1. Rule. The respondents waive service through their

release of the petitioner's son Rohit Jain from illegal and

of Additional Chief Metropolitan Magistrate, 3rd Court,

the above case and registered at the instance of the Central

Bureau of Investigation (CBI), Economic Offences Wing,

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granted CBI custody till 28­9­2017. Thereafter, the son was

produced on 28­9­2017 as the CBI custody was extended till

4. Thereafter, on 9­11­2017, a further remand

days, as circumscribed by Section 167(2) of the Code of

remanded on 9­11­2017 for an offence punishable with

“167. Procedure when investigation cannot be

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(2) The Magistrate to whom an accused person is

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(b) no Magistrate shall authorise detention of the

(c) no Magistrate of the second class, not specially

(2A) Notwithstanding anything contained in sub­

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the police station or the police officer making the

Provided that before the expiry of the period

(3) A Magistrate authorising under this section

(4) Any Magistrate other than the Chief Judicial

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(5) If in any case triable by a Magistrate as a

(6) Where any order stopping further investigation

7. The argument is that the petitioner's son's custody

1973. It also violates the fundamental right guaranteed by

8. The son applied for release on bail only on this

on the ground that during the course of investigations the

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the charge­sheet is 90 days instead of 60 days. However, the

statutory bail application being rejected, the petitioner made

10. Reliance was placed on several judgments of the

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material placed before us, particularly on affidavit of the

respondents, we would pass a final order on the petition.

Despite all persuasive abilities at his command,

of the Hon'ble Supreme Court in the case of Ram Narayan

SC 277 right upto the recent decision delivered by a Bench

presided over by Hon'ble Shri Justice Dipak Misra, as His

Lordship then was, in the case of Manubhai Ratilal Patel

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We accordingly issue such writ. The rule is, therefore, made

absolute in terms of prayer clause (a). That prayer reads as

“(a) To issue a Writ of Habeas Corpus or any other

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granted CBI custody till 2892017. Thereafter, the son was

produced on 2892017 as the CBI custody was extended till

4. Thereafter, on 9112017, a further remand

remanded on 9112017 for an offence punishable with

(2A) Notwithstanding anything contained in sub

the chargesheet is 90 days instead of 60 days. However, the