Bom HC | No restriction on power of Sessions Judge to remand the accused in judicial custody for a particular period

Bombay High Court: A Division Bench of S.S. Shinde and N.B. Suryawanshi, JJ., dismissed a petition whereby the petitioners sought their release by invoking the writ of Habeas Corpus on the ground that their judicial custody was authorised beyond a period of 15 days he designated court, which is contrary to the mandate of Section 309(2) CrPC.

The petitioners were accused in a criminal case registered under various provisions of IPC and the MPID Act, 1999. The main ground pressed in to service by Subhash Jha and Harekrishna Mishra, Advocates for the petitioners, was that the proviso to Section 309(2) CrPC provides for remand of the accused of a term not extending 15 days at a time. In the present case, from time to time, the judicial custody of the petitioners was extended beyond 15 days, which according to them was in violation of Article 21 of the Constitution. Per contra, M.M. Deshmukh, APP for the State, opposed the writ petition.

Perusing Section 309(2) along with its first proviso, the High Court noted that the proviso to Section 309(2) CrPC carves out the exception to the general provision thereby imposing restriction that no Magistrate shall remand the accused persons to custody under Section 309(2) CrPC for a term exceeding 15 days at a time.

However, applying the settled principles of interpretation of statutes, the Court went on to observe: “In our considered opinion, the restrictions imposed on the Magistrate by this proviso are not applicable to the Court of Sessions.” It was further stated: “…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”

Also, relying on Saurabh Kumar v. Koneila Jail, (2014) 13 SCC 436 and State of Maharashtra v. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, the High Court reiterated that writ of Habeas Corpus is not maintainable against the judicial order remanding the accused into the custody and appropriate remedy is to seek bail.

The High Court, therefore, held that the petitioners were entitled to the writ of habeas corpus and their remedy lie elsewhere. Resultantly, the instant petition was dismissed. [Harshad Dinanath Bari v. State of Maharashtra, 2019 SCC OnLine Bom 5701, decided on 18-12-2019]

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