Liberty is sacrosanct, said the Delhi High Court, but it asked why a person in preventive custody should not first pursue the remedy of revision that the Code provides. The question was put to CJP leaders Saurav Das and Ashutosh Ranka.
New Delhi: Asked by the Delhi High Court on Wednesday, October 21, why Cockroach Janta Party (CJP) leaders Saurav Das and Ashutosh Ranka had invoked Article 226 of the Constitution against a Special Executive Magistrate’s order extending their judicial custody, when a remedy of revision was available under the Bharatiya Nagarik Suraksha Sanhita (BNSS), counsel was reminded of the distinction between maintainability and entertainability [Saurav Das and Ashutosh Ranka v. State (NCT of Delhi)].
Justice Subramonium Prasad put the questions. Advocate Abhik Chimni appeared for Das and Ranka, and Additional Solicitor General Chetan Sharma, with CGSC Ashish Dixit, for the Delhi Police. The petition was later withdrawn, with the Court recording that it had expressed no opinion on the merits.
Liberty, and the question left unanswered
Chimni said his most basic argument was that preventive custody cannot be imposed arbitrarily. The judge’s reply was:
“Liberty is sacrosanct. But when the Code already provides a remedy, why not pursue it? You are still not answering that question.”
Justice Prasad then set out how the two routes differ: “In an appeal, the appellate court examines the facts and reaches a conclusion. In a writ, the Court examines the decision-making process rather than the decision itself.” Preventive custody, he added, is not the same as preventive detention, for which habeas corpus is the remedy.
Maintainable, but should it be entertained?
Describing the second incident as a question of breach of the bond, the judge said the remedy lay in revision:
“There is a difference between maintainability and entertainability. If the order is open to revision, why approach under Article 226?”
In settled law, a writ petition under Article 226 can be maintainable, meaning the High Court has the power to hear it, and still go unentertained as a matter of discretion where an effective alternative remedy exists. Exceptions have been recognised for a violation of fundamental rights, a breach of natural justice or an order passed wholly without jurisdiction, and the petitioners’ case rested on Article 21.
“Are you firing your gun today?”
With the two due before the Magistrate the same afternoon, the judge suggested that they withdraw, wait and see, and then follow the course of law. “Suppose things go in your favour at 4 PM today. The issue ends. If not, you can seek revision or approach under Article 226 tomorrow. Are you firing your gun today when it may not be legally necessary?” he asked. It would not be a final hearing in any event, he added, since the State would have to respond, and he also said, “There is no need today to debate for people’s ears.”
Chimni explained that he was not pursuing the alternative remedy because the October 19 order contained a finding that the public-order test was satisfied. He took instructions and then withdrew the petition.
The custody dispute so far
Das and Ranka were first held on October 10, ahead of the CJP protest against Chief Election Commissioner Gyanesh Kumar, and were released on peace bonds. After the October 13 protest at Jantar Mantar, which had been de-notified as a protest site, a Special Executive Magistrate sent them to judicial custody on October 14 for allegedly breaching those bonds. On October 19, Special Executive Magistrate Ritu Raj extended the custody until October 21 and held the sureties offered to be unfit. Their High Court petition, filed on October 20, challenged that order.
The police allegation that the two breached their bonds is untested, and the High Court recorded that it expressed no opinion on the merits. Das and Ranka are presumed innocent.
Case Title: Saurav Das and Ashutosh Ranka v. State (NCT of Delhi) (case number not available)
Bench: Justice Subramonium Prasad
Date: October 21, 2026 (petition dismissed as withdrawn)
Appearances: Advocate Abhik Chimni for the petitioners; ASG Chetan Sharma with CGSC Ashish Dixit for the Delhi Police