Delhi High Court: A petition under the writ of habeas corpus was filed by the petitioner seeking direction to respondents 3 and 4 to produce the petitioner before the Court and set aside the impugned order dated 15-06-2023 passed by the Duty MM, Southeast Distt., Saket Courts. A division bench of Jasmeet Singh, and Vikas Mahajan, JJ., sets aside the impugned order with the direction to the Duty Magistrate to consider and decide the application moved by the petitioner under Section 437 CrPC within 2 days from receiving of the order.
As per the petitioner, in the present case, the Duty Magistrate should have been to see the Case Diary (CD) and thereafter opined whether a case of transit remand has been made out. The main grievance is that the Duty Magistrate did not see the Case Diary as it was in Marathi language and passed the transit remand order. Therefore, the order of transit remand is illegal, and hence, the petition under habeas corpus was filed.
Counsel for the petitioner submitted that the petitioner is in custody pursuant to the orders of the concerned Court dated 14-06-2023 and hence, his custody is not illegal. He further stated that the Duty Magistrate has duly applied his mind and thereafter held that the Investigating Officer will take the accused before the jurisdictional MM, wherein his bail application would be adjudicated upon merits.
The Court noted that on perusal of the transit remand order dated 15-06-2023, the application filed by the petitioner under Section 437 Criminal Procedure Code was not considered by the Duty Magistrate and the Duty Magistrate granted transit remand.
Thus, the Court set aside the impugned order dated 15-06-2023 passed by the Duty Magistrate and directed that the application under Section 437 CrPC filed by the petitioner should be heard and decided on merits.
[Rahul Lunia v State, 2023 SCC OnLine Del 3641, decided on 16-06-2023]
Advocates who appeared in this case :
Mr. Sahil Mongia, Mr. Prateek Mehta, Mr. Vikas, Mr. Rahul Yadav, Mr. Sahil Rao, Ms. Megha Mehta, Advocates for the Petitioner;
Mr. Sanjeev Bhandari, ASC with Mr. Kunal Mittal, Advocate for the Respondent.
Buy Code of Criminal Procedure, 1973 HERE
