After examining the two sets of judgments of the Supreme Court, the High Court opined that validity of initial detention and subsequent detention orders can be considered “as the basis of maintaining the habeas corpus petition” only till the investigation is in progress.
“Once investigation is concluded, charge sheet is submitted an order of cognizance on charge sheet is passed, the right to challenge the initial illegality in the order of remand cannot be enforced.
The order of cognizance of the court can always be assailed by resort to appropriate statutory remedy provided under the provisions of the Cr.P.C / B.N.S.S,” the Bench added.
However, the second set of recent judgments do not appear to have considered the aforesaid earlier pronouncements of the Apex Court,” the Bench said.
It also declared that rejection of bail application of accused by High Court or the Supreme Court would be a bar to entertainment of habeas corpus writ petition against custody of accused.
After examining the two sets of judgments of the Supreme Court, the High Court opined that validity of initial detention and subsequent detention orders can be considered “as the basis of maintaining the habeas corpus petition” only till the investigation is in progress.
“Once investigation is concluded, charge sheet is submitted an order of cognizance on charge sheet is passed, the right to challenge the initial illegality in the order of remand cannot be enforced. The order of cognizance of the court can always be assailed by resort to appropriate statutory remedy provided under the provisions of the Cr.P.C / B.N.S.S,” the Bench added.
It explained that the initial order of remand passed by the magistrate loses its significance once cognizance is taken on the charge-sheet submitted by the Investigating Officer.
The Court ruled that the filing of a writ petition for habeas corpus after passing of the judicial order of remand and subsequent orders taking cognizance of the offence, committal of the case and framing of charge, cannot be justified.
“The first set of earlier judgments of the Apex Court, wherein it has been held that the legality of detention in a habeas corpus petition is to be examined with reference to the order subsisting on the date of return of the rule, were rendered after considering the entire scheme of criminal procedure and trial. However, the second set of recent judgments do not appear to have considered the aforesaid earlier pronouncements of the Apex Court,” the Bench said.
Thus, the Court ruled that the second set of judgments of the Supreme Court “are not binding precedents and hit by the principles of stare decisis.”
"The above consideration of the second set of judgments in the cases of Vihan Kumar; Prabir Purkayastha; Pankaj Bansal; Mihir Rajesh Shah; Kasi Reddy and Upendra Reddy appears to be hit by the principles of stare decisis."
It also declared that rejection of bail application of accused by High Court or the Supreme Court would be a bar to entertainment of habeas corpus writ petition against custody of accused.
