The Allahabad High Court held that habeas corpus petitions challenging an accused’s initial arrest and remand cannot ordinarily be entertained after cognizance, framing of charges, and substantial progress in trial. “Pandora’s Box Has Been Opened,” the Court remarked on recent illegal-arrest jurisprudence.
The High Court of Judicature at Allahabad has held that a habeas corpus petition challenging the legality of an accused person’s initial arrest and remand cannot ordinarily be entertained after cognizance has been taken, charges have been framed, and the criminal trial has substantially progressed.
A Division Bench of Justice Siddharth and Justice Vinai Kumar Dwivedi was hearing a habeas corpus petition filed by Neeraj, who is facing trial in a dowry death and murder case involving the death of his wife and one-year-old daughter.
The petitioner claimed that at the time of his arrest, the police failed to communicate the grounds of arrest to him in writing and also did not inform his family members. Relying on recent Supreme Court rulings, he argued that the violation of Articles 21 and 22(1) of the Constitution rendered his arrest illegal and consequently invalidated the subsequent remand orders.
The petitioner referred to recent Supreme Court judgments, including Prabir Purkayastha v. State (NCT of Delhi), Pankaj Bansal v. Union of India, Vihaan Kumar v. State of Haryana, Kasireddy Upender Reddy v. State of Andhra Pradesh and Mihir Rajesh Shah v. State of Maharashtra, which emphasised that failure to communicate the grounds of arrest can vitiate the arrest and remand process.
The State opposed the plea and argued that the petitioner was no longer in custody because of the original remand order. Instead, he was in judicial custody pursuant to valid subsequent judicial orders. The State pointed out that charges had already been framed, the trial was underway, and prosecution witnesses were being examined.
After considering rival submissions, the High Court noted that there appeared to be two sets of Supreme Court precedents operating in the field. One line of judgments, including Kanu Sanyal v. District Magistrate, Darjeeling and Sanjay Dutt v. State Through CBI, held that while considering a habeas corpus petition, courts must examine the legality of detention on the date of hearing and not with reference to the initial arrest.
Another line of recent judgments stressed that violation of constitutional safeguards at the time of arrest could invalidate the arrest itself.
The Bench observed that the recent judgments did not appear to have considered several earlier decisions that held that subsequent valid judicial orders could replace and supersede an earlier allegedly defective detention order.
Expressing concern about the practical implications of recent rulings, the Court made a significant observation,
“We have heard number of petitions on this issue and have found that in view of the second set of recent judgments of the Apex Court in the case of Vihan Kumar (Supra) and others, the flood gates have been opened for the persons in detention to approach the court at any stage of investigation / trial and even after cognizance of offence taken on charge sheet, framing of charge and during trial and after rejection of their bail applications by the trial court, High Court and the Hon’ble Supreme Court.”
The Court further remarked,
“Therefore, in the absence of any fetters on the right of accused to approach this court challenging his initial arrest, a pandoras box has been opened and the petitions are being filed after cognizance on charge sheet, framing of charge and remand orders under Sections 209 and 309 Cr.P.C and also during recording of evidence in trial.”
The Bench held that an accused can challenge the legality of arrest and remand through a habeas corpus petition while the investigation is still ongoing. However, once the investigation is complete and a charge sheet has been filed, followed by cognizance by the competent court, the original remand order loses significance.
The Court observed,
“The habeas corpus petition challenging the initial arrest can be preferred before the High Court by an accused, claiming that his initial arrest and remand order were illegal till the cognizance is taken on the charge sheet submitted by investigating officer of the police before the court.”
The High Court explained that criminal proceedings pass through multiple stages, including registration of the FIR, arrest, remand, investigation, filing of the charge sheet, cognizance, committal, framing of charges, trial and final judgment. Once cognizance is taken and the case moves into the trial stage, subsequent judicial orders govern the custody of the accused.
Rejecting the petition, the Court noted that the petitioner had approached the High Court more than two years after his arrest. By then, charges had already been framed and trial was in progress.
The Court also found that the petitioner had not earlier challenged the remand order or raised the alleged constitutional violations before the court considering his bail application.
Accordingly, the High Court held that a habeas corpus challenge based on alleged defects in the initial arrest or remand cannot ordinarily be maintained after cognizance has been taken and the criminal trial has advanced, leaving the petitioner free to pursue other statutory remedies available under criminal law.
Case Title: Neeraj And Another v State of UP and Another