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2018 (9) TMI 1782 - SC - Indian LawsIllegal and unlawful detention - Writ of habeas corpus directing the Appellants to produce her husband - whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with the offence under investigation? Held that:- Admittedly, when the writ petition for issuance of a writ of habeas corpus was filed by the Respondent on 18th/19th March, 2018 and decided by the High Court on 21st March, 2018 her husband Rizwan Alam Siddique was in police custody pursuant to an order passed by the Magistrate granting his police custody in connection with FIR No. I-31 vide order dated 17th March, 2018 and which police remand was to enure till 23rd March, 2018. Further, without challenging the stated order of the Magistrate, a writ petition was filed limited to the relief of habeas corpus. In that view of the matter, it was not a case of continued illegal detention but the incumbent was in judicial custody by virtue of an order passed by the jurisdictional Magistrate, which was in force, granting police remand during investigation of a criminal case. Resultantly, no writ of habeas corpus could be issued. Suffice it to observe that since no writ of habeas corpus could be issued in the fact situation of the present case, the High Court should have been loath to enter upon the merits of the arrest in absence of any challenge to the judicial order passed by the Magistrate granting police custody till 23rd March, 2018 and more particularly for reasons mentioned in that order of the Magistrate. Even though this appeal succeeds, since the Respondent's husband Rizwan Alam Siddique has already been released after the impugned judgment, the Investigating Officer may proceed against him in connection with the stated crime strictly in accordance with law and not merely because the impugned order has been set aside - appeal allowed.
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