Case Note & Summary
The petitioner, Sushil Lohiya, filed a habeas corpus petition on behalf of his son Brijesh Lohiya, who was an accused in an offence registered under Sections 120-B read with 420 of the Indian Penal Code and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 with CBI, EOB, Mumbai. Brijesh was arrested, produced before the Special Court, and initially remanded to police custody. On 8 March 2022, he was sent to magisterial custody with a due date for production on 22 March 2022. On 22 March 2022, Brijesh was neither produced physically nor virtually before the Special Judge. Despite this, the Special Judge extended the period of magisterial custody till 5 April 2022. The petitioner sought setting aside of the impugned remand order dated 22 March 2022 and direction for release of his son from continued illegal detention. The respondents contended that the judicial custody was extended by the Special Judge and hence no relief could be granted. The court framed the issue whether reliefs can be granted when judicial custody was extended without producing the arrestee either physically or virtually. Both sides relied on various judgments. The court held that the failure to produce the accused on the date fixed for remand violates the mandatory requirement of Section 167 CrPC and Section 309 CrPC, and the continued detention becomes illegal. The court allowed the petition, set aside the impugned remand order, and directed the release of Brijesh Lohiya forthwith unless required in any other case.
Headnote
A) Criminal Procedure - Habeas Corpus - Illegal Detention - Remand Without Production - Article 226 of Constitution of India, Section 167 CrPC, Section 309 CrPC - The court considered whether extension of judicial custody without producing the accused physically or virtually on the remand date renders the detention illegal. Held that failure to produce the accused on the date fixed for remand violates the mandatory requirement of Section 167 CrPC and Section 309 CrPC, and the continued detention becomes illegal, warranting issuance of writ of habeas corpus. (Paras 1-20)
Issue of Consideration
Whether reliefs can be granted when judicial custody was extended by the Special Judge, CBI without producing the arrestee either physically or virtually on 22 March 2022?
Final Decision
The court allowed the petition, set aside the impugned remand order dated 22 March 2022, and directed the release of Brijesh Lohiya forthwith unless required in any other case.
Law Points
- Habeas corpus
- illegal detention
- remand without production
- personal liberty
- Article 226
- Section 167 CrPC
- Section 309 CrPC
Case Details
2022 LawText (BOM) (04) 41
Writ Petition No.970 of 2022
Prasanna B. Varale, S. M. Modak
Mr. Abad Ponda, Senior Advocate a/w Mr. Sajal Yadav, Mr. Shalabh K. Saxena, Mr. Mitul Shah, Mr. Harsh Ghangurde, Mr. Karma Vivan and Mr. Sudarshan Khawase i/b Mr. Raj Raut for the Petitioner. Mr. Kuldeep Patil for Respondent No.1-CBI. Mrs. M.H. Mhatre, APP for Respondent No.2-State.
Sushil Lohiya (for his son Brijesh Lohiya)
Central Bureau of Investigation (EOB) Mumbai, State of Maharashtra
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Nature of Litigation
Habeas corpus petition challenging illegal detention
Remedy Sought
Setting aside the impugned remand order dated 22 March 2022 and direction to release Brijesh Lohiya from continued illegal detention
Filing Reason
The detenue was not produced physically or virtually on the remand date, yet judicial custody was extended
Previous Decisions
On 8 March 2022, the detenue was sent to magisterial custody with due date for production on 22 March 2022. On 22 March 2022, the Special Judge extended magisterial custody without production.
Issues
Whether reliefs can be granted when judicial custody was extended by the Special Judge, CBI without producing the arrestee either physically or virtually on 22 March 2022?
Submissions/Arguments
Petitioner: The detention is illegal as the accused was not produced on the remand date, violating mandatory provisions of CrPC.
Respondents: The judicial custody was extended by the Special Judge, hence no relief can be granted.
Ratio Decidendi
Failure to produce the accused on the date fixed for remand violates the mandatory requirement of Section 167 CrPC and Section 309 CrPC, rendering the continued detention illegal and warranting issuance of writ of habeas corpus.
Judgment Excerpts
In this Petition, we are dealing with a short but an important issue of seminal importance relating to personal liberty of son of the Petitioner.
Whether reliefs can be granted when judicial custody was extended by the Special Judge, CBI without producing the arrestee either physically or virtually on 22 March 2022?
Procedural History
The detenue was arrested, produced before the Special Court, and remanded to police custody initially. On 8 March 2022, he was sent to magisterial custody with due date for production on 22 March 2022. On 22 March 2022, he was not produced physically or virtually, but the Special Judge extended magisterial custody till 5 April 2022. The petitioner filed a habeas corpus petition on this background.
Acts & Sections
- Indian Penal Code, 1860: 120-B, 420
- Prevention of Corruption Act, 1988: 13(2), 13(1)(d)
- Code of Criminal Procedure, 1973 (CrPC): 167, 309
- Constitution of India: 226
