Justice Vinai Kumar Dwivedi, Justice Siddharth, Allahabad High Court

The Allahabad High Court dismissed a habeas corpus writ petition filed by an accused facing trial for the alleged dowry death and murder of his wife and minor daughter, holding that a challenge to an illegal arrest or a defective initial remand is maintainable only while the investigation is actively in progress.

The Court observed that once a judicial order of cognizance is passed on the charge-sheet, any prior infirmity in the pre-investigation remand ceases to operate and cannot be used to bypass the statutory framework of trial and regular bail.

Critically evaluating the conflicting legal precedents on the subject, the Court found that the recent line of Supreme Court rulings—which mandate the immediate release of an arrestee if written grounds of arrest are not promptly supplied—failed to consider older, binding Constitution Bench precedents and are consequently non-binding, per incuriam, and hit by the principles of stare decisis.

The Division Bench of Justice Siddharth and Justice Vinai Kumar Dwivedi observed, "In such a situation, litigants would subject the decisions of the Supreme Court to a continuous process of attack before successive Benches in the hope that changes in the personnel of the Court, which time must inevitably bring, might lead to the acceptance of a different view. The Apex Court held that nothing can be more damaging to the prestige of the Court or the value of its pronouncements than allowing a question settled by previous decisions to be reopened upon a mere suggestion that some or all members of a later Bench might arrive at a different conclusion. The Apex Court cautioned that there would be grave danger of lack of continuity in the interpretation of law if such a situation were allowed to prevail. In view of the above consideration, we find respectfully that the second set of judgments of the Hon’ble Supreme Court are not binding precedents and hit by the principles of stare decisis."

Advocate Anupam Verma appeared for the Petitioners, while Additional Advocate General Manish Goyal appeared for the State.

Brief Facts of the Case

An F.I.R. was registered against the petitioner at Police Station Kotwali Lalitpur for the alleged dowry death and murder of his wife and infant daughter. The petitioner was arrested and remanded to judicial custody by the Remand Magistrate. Following investigation, a charge-sheet was filed, cognizance was taken, and the case was committed to the Court of Sessions, where charges were framed and trial commenced. After his regular bail application was rejected by the Sessions Court and a considerable period elapsed from his arrest, the petitioner preferred the present Habeas Corpus writ petition before the High Court, asserting that his detention was illegal.

Contentions of the Petitioners

The petitioner contended that the arresting officer failed to communicate the grounds of arrest in writing to him or his family, directly violating the statutory mandates of the B.N.S.S. and his fundamental rights under Article 22(1) of the Constitution of India. It was argued that since the initial arrest was void ab initio, all subsequent judicial remand orders passed by the Magistrate were automatically vitiated and rendered non-est in law, a defect that could not be cured by the subsequent filing of a charge-sheet. The petitioner asserted that the trial court mechanically extended his custody without modifying the warrants under the proper statutory provisions and violated the fifteen-day statutory cap mandated for remands during trial.

Contentions of the State-Respondents

The State countered that a writ of Habeas Corpus does not lie against valid judicial remand orders passed by a competent criminal court, which had not been expressly challenged by the petitioner. It was argued that in Habeas Corpus proceedings, the court must test the legality of the detention on the date of hearing or return. Since the petitioner was currently in custody under a valid warrant during an ongoing trial, his detention was entirely lawful.

The State maintained that the petition was liable to be dismissed due to an unexplained delay of over two years, especially since the petitioner had already applied for regular bail before the Sessions Court without ever raising the plea of illegal arrest. The State concluded that the recent rulings relied upon by the petitioner were passed in ignorance of earlier binding Constitution Bench judgments and were therefore per incuriam under the doctrine of stare decisis.

Observations of the Court

The Court observed that it was confronted with two distinct and seemingly irreconcilable sets of judgments from the Apex Court regarding the maintainability of a Habeas Corpus petition. The older line of precedent established that the legality of detention must be tested at the time of the return of the rule, and that subsequent valid judicial orders cure any initial infirmity.

Conversely, the newer set of recent rulings held that a breach of constitutional mandates at the time of arrest strikes at the root of personal liberty, rendering the arrest void ab initio and making all subsequent remand orders non-est. The Court remarked that this newer position had opened the floodgates, creating a chaotic situation where detainees routinely filed Habeas Corpus petitions at any advanced stage of investigation or trial, even after the consecutive rejection of their regular bail applications by multiple courts.

The Court critically evaluated the recent line of Supreme Court authorities and found favor with the arguments advanced by the State. It observed that these recent judgments failed to consider or overrule the long-standing, binding precedents laid down by earlier Constitution Benches, such as the landmark rulings which mandated that a Habeas Corpus writ cannot be issued if the current custody is backed by a valid judicial order.

Invoking the constitutional objective of finality and certainty under Article 141, the Court respectfully held that the newer set of judgments were hit by the principles of stare decisis and the doctrine of per incuriam, thereby rendering them non-binding as precedents for the present controversy.

The Court traced the progressive steps of a criminal proceeding, highlighting that there are multiple intermediary judicial stages between the registration of an F.I.R. and the final judgment. It observed that a pre-investigation remand order passed by a Magistrate under Section 167 of the Code of Criminal Procedure (Cr.P.C.) automatically ceases to operate and loses its efficacy the moment a competent court evaluates the charge-sheet and passes a judicial order taking cognizance of the offence. Because an order of cognizance, a committal order under Section 209 Cr.P.C., and the subsequent framing of charges are independent judicial acts standing on a much higher footing, they effectively supersede and render redundant the initial remand order.

The Court clarified the legal position by defining a strict timeline for invoking extraordinary writ jurisdiction. It held that a Habeas Corpus petition challenging an illegal arrest or a defective initial remand remains maintainable only so long as the investigation is actively in progress.

The absolute cut-off stage occurs when the judicial order of cognizance is passed on the charge-sheet. Beyond this milestone—or after orders of committal, framing of charges, and subsequent remands under Section 309 Cr.P.C. during trial—the remedy of Habeas Corpus becomes completely unavailable. Any alleged violations of Articles 21 and 22(1) of the Constitution after this stage must instead be agitated through the statutory remedy of regular bail or by challenging the judicial orders via specific statutory revisions provided under the code.

The Court further observed that entertaining a Habeas Corpus petition after an accused person's regular bail application had already been rejected by a High Court or the Supreme Court would violate judicial propriety. It noted that allowing an accused to re-agitate the same custody grievances before a coordinate Bench under the guise of a writ of Habeas Corpus would effectively amount to an impermissible lateral appeal or review of a coordinate Bench's decision, which cannot be sanctioned in law.

"The above consideration of the second set of judgments in the cases of Vihan Kumar; Prabir Purkayastha; Pankaj Bansal; Mihir Rajesh Shah; Kasi Reddy and Upendra Reddy appears to be hit by the principles of stare decisis. The Apex Court, in the case of Bengal Immunity Co. Ltd. vs. State of Bihar, 1955 SC 661 held in paragraph 186 that the Apex Court should not differ from its previous decision merely because a view contrary to the one taken therein appears to be preferable. The Apex Court held in the said judgment that it is in the public interest that the law declared should be certain and final rather than that it should be declared in one sense or the other. This was the reason behind Article 141. The object of Article 141 is that the decisions of the Supreme Court on questions of law should settle the controversy and should be followed as law by all courts. If such decisions are allowed to be reopened merely because a different view appears to be a better one, then the very purpose for which Article 141 was enacted would be defeated", the Court said.

Applying these settled principles to the facts of the case, the Court observed that the petitioner moved the writ court at an extremely belated stage, more than two years after his arrest, and precisely when the trial had advanced to the stage of recording prosecution evidence under Section 309 Cr.P.C.

The Court found that the petitioner had suppressed the material dates of his arrest and remand, and had failed to raise any plea of constitutional violation when his regular bail application was rejected by the Sessions Court.

"After the cognizance is taken on the charge sheet submitted by the investigating officer, the challenge to arrest of accused can be made on the grounds of violation of Article 21 and 22(1) of the Constitution of India by resorting to statutory remedy of bail provided under the statute...The remedy of filing habeas corpus petition will also not be available to an accused after the order of committal under Section 209 Cr.P.C. / 232 B.N.S.S or remand by the trial court under Section 309 Cr.P.C./346 B.N.S.S", the Court held.

Holding that the general practice of noting dates on the remand sheet was legally sufficient and that subsequent trial custody warrants were perfectly valid, the Court concluded that the petitioner's challenge was neither bona fide nor sustainable in law, resulting in the outright dismissal of the writ petition.

Cause Title: Neeraj and Another v. State of U.P. and Ors.[Neutral Citation: 2026:AHC:123102-DB]

Appearances:

Petitioners: Advocates Krishn Kumar, Sandesh Niranjan, Shravan Kumar Yadav

Respondents: AAG Manish Goyal and AG Rupak Chaubey

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