Patna High Court
Prem Shankar JhaversusThe State of Bihar through the Principal Secretary, Home Department, Government of Bihar, Patna
- Decided
- Disposal
- DISMISSED
Holding
A detention that is the result of a valid judicial remand order cannot be declared illegal for the purposes of a habeas corpus writ, even if there are procedural irregularities in the arrest, provided the delay in production is justified.
Summary
The petitioner, Prem Shankar Jha, was arrested on 5 August 2025 in connection with a murder case (Benta PS Case No. 133 of 2025) and was produced before the Chief Judicial Magistrate only on 12 August 2025, allegedly violating Sections 46(2), 47 and 58 of the Bharatiya Nagarik Suraksha Sanhita and Article 22 of the Constitution. The petitioner claimed that the grounds of arrest were not communicated and that the delay in production was unlawful, seeking a writ of habeas corpus and certiorari to quash the remand order. The High Court examined whether the delay, justified on medical grounds, and the alleged procedural lapses rendered the custody illegal. Relying on precedents such as Kanu Sanyal and Manubhai Patel, the Court held that detention pursuant to a valid judicial remand cannot be set aside by a habeas corpus writ unless the order is void. The Court found that the petitioner was medically hospitalized, the arrest memo showed he was informed of the arrest, and the remand order was within jurisdiction. Consequently, the Court dismissed the writ petition, holding that the custody was lawful.
Issues considered
- Whether the delay in production before the magistrate renders the detention illegal under Section 58 of the Bharatiya Nagarik Suraksha Sanhita and Article 22(2) of the Constitution
- Whether the failure to communicate the grounds of arrest violates Article 22(1) and Section 47 of the Bharatiya Nagarik Suraksha Sanhita
- Whether a writ of habeas corpus can be issued to challenge a valid judicial remand order
Legislation cited
- Arms Act — s. 25(1-b)(a), 26, 27
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 46(2), 47, 58
- Bharatiya Nyaya Sanhita, 2023 — s. 103, 3(5), 61
Subjects
- Habeas Corpus
- Illegal detention
- Judicial remand
- Delay in production
- Article 22
- Criminal procedure
- Arrest
- Medical grounds
- Constitutional law
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.240 of 2026
Arising Out of PS. Case No.-133 Year-2025 Thana- Benta District- Darbhanga
======================================================
Prem Shankar Jha S/o Late Kedar Nath Jha Resident of village - Bangaon, P.S
- Banagaon, District - Saharsa
... ... Petitioner/s
Versus
1. The State of Bihar through the Principal Secretary, Home Department,
Government of Bihar, Patna
2. The Director General of Police, Home Department, Government of Bihar,
Patna
3. The Inspector General of Police, Darbhanga Division, Darbhanga, District -
Darbhanga
4. The Superintendent of Police, Darbhanga, District - Darbhanga Bihar
5. The Deputy Superintendent of Police, Darbhanga, District - Darbhanga
6. The Officer Incharge of Benta Police Station, District - Darbhanga Bihar
7. The Investigation Officer of Benta Police Station, Benta P.S case No. 133 of
2025, P.S - Benta District - Madhubani, Bihar
8. Smt. Minta Devi, Husband Name - Not known to the Petitioner, arresting
authority of the petitioner the S.I of Benta Police Station, Darbhanga,
District - Darbhanga
9. Ganesh Mandal S/o Late Lakhan Mandal R/o Village - Tulapatti, P.S - Pipra,
District - Supaul
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Subhash Kumar Jha, Advocate
Mr. Chaudhary Prem Shankar Thakur, Advocate
For the Respondent/s : Mr.A.C to A.G.
======================================================
CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
and
HONOURABLE MR. JUSTICE RAJESH KUMAR VERMA
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)
Date : 11-02-2026
Heard learned counsel for the petitioner and learned
counsel for the respondents.
2. The present writ petition, in the nature of Habeas
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Corpus, has been preferred seeking the following reliefs:-
“ Present application is being filed to issue a writ
in the nature of habeas corpus for issuance of a
direction to the respondents authorities to release
the petitioner from illegal custody in connection
with Benta P.S.Case No. 133 of 2025 dated
06.08.2025 corresponding to G.R. No. 3387 of
2025 registered for offences under section 103, 61
and 3(5) of Bharatiya Nyaya Sanhita, 2023 and
section 25(1-b)a, 26 and 27 of Arms Act as the
custody of petitioner is completely illegal under
provision 46(2) 47 and 58 of Bhartiya Nagrik
Suraksha Sanhita 2023, and Article 21 and 22(1) of
the Constitution of India and further be pleased to
issue a writ in the nature of certiorari to quash the
order dated 12.08.2025 passed by learned Chief
Judicial Magistrate, Darbhanga by which the
learned Court below without seeing the provision
as mentioned above, send the petitioner in judicial
custody and as such the custody of petitioner is
completely, unjustified and clearly violation of
provision as mentioned above.”
3. The brief facts, as alleged, are that the
prosecution case arises out of the Fardbeyan of respondent no.
9, pursuant to which Benta P.S. Case No. 133 of 2025 dated
06.08.2025, corresponding to G.R. No. 3387 of 2025, was
registered against the petitioner and others. As per the
informant, on 05.08.2025 at about 05:30 P.M., he received
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information that the petitioner had shot his son, Rahul Kumar,
by firearm. Upon reaching the postmortem house at about 09:00
P.M., he found his son dead. It was further alleged that the
petitioner had gone to the place of occurrence along with his
two sons and wife. The informant also stated that the
petitioner’s daughter, Tanu Priya, had solemnized marriage with
the deceased while both were studying in a B.Sc. Nursing
College, and that owing to the said marriage, the petitioner had
earlier lodged a case at Banagaon Police Station. After
completion of investigation, charge-sheet No. 198 of 2025 dated
07.11.2025 was submitted under Section 103(1) of the Bharatiya
Nyaya Sanhita, 2023 and Sections 25(1-B)(a), 26 and 27 of the
Arms Act.
4. Learned counsel for the petitioner submits that
although the petitioner was arrested on 05.08.2025 at 05:40 P.M.
he was produced before the learned Chief Judicial Magistrate,
Darbhanga only on 12.08.2025, i.e., after seven days, which is
in violation of Section 58 of the B.N.S.S., 2023 and Article
22(2) of the Constitution of India. It is also submitted that
grounds of arrest were neither communicated at the time of
arrest nor at the time of his production before the Magistrate,
resulting in violation of Article 22(1) of the Constitution of
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India and Section 47 of the B.N.S.S., 2023.
5. In support of the aforesaid submissions, reliance
has been placed upon the judgement of the Hon’ble Supreme
Court in Vihaan Kumar vs. State of Haryana & Another
(Special Leave Petition (Criminal) No. 13320 of 2025), and
Minir Rajesh Shah vs. State of Maharashtra & Another
(Criminal Appeal No. 2195 of 2025 along with connected
matters).
6. Upon hearing the submissions advanced on
behalf of the parties and perusal of the entire materials available
on record, the core issue that arises for consideration in the
present case is: “Whether, in the facts of the present case, the
custody of the petitioner can be said to be illegal or without
authority of law, on account of the alleged delay in production
before the Magistrate, and alleged procedural irregularities in
the remand proceedings, so as to justify issuance of a writ in the
nature of Habeas Corpus expedient under Article 226 of the
Constitution of India?”
7. It is well settled that a writ of Habeas Corpus is
maintainable only when detention is shown to be wholly illegal
or without authority of law. Detention pursuant to a judicial
order of a competent court limits the scope of interference under
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Article 226. In Kanu Sanyal v. District Magistrate, Darjeeling
reported in (1973) 2 SCC 674, the Hon’ble Supreme Court has
authoritatively explained the true nature, scope and object of a
writ of Habeas Corpus. Paragraph 4 of the said judgment, reads
as follows:
“4..It will be seen from this brief history of the writ of
habeas corpus that it is essentially a procedural writ. It
deals with the machinery of justice, not the substantive
law. The object of the writ is to secure release of a
person who is illegally restrained of his liberty. The writ
is, no doubt, a command addressed to a person who is
alleged to have another person unlawfully in his
custody requiring him to bring the body of such person
before the Court, but the production of the body of the
person detained is directed in order that the
circumstances of his detention may be inquired into, or
to put it differently, ‘in order that appropriate judgment
be rendered on judicial enquiry into the alleged
unlawful restraint’...”
8. Similarly, in Manubhai Ratilal Patel v. State of
Gujarat & Ors. reported in (2013) 1 SCC 314, the Hon’ble
Supreme Court has observed as follows:
“31.. Unless the court is satisfied that a person has
been committed to jail custody by virtue of an order that
suffers from the vice of lack of jurisdiction or absolute
illegality, a writ of habeas corpus cannot be granted. It
is apposite to note that the investigation, as has been
dealt with in various authorities of this Court, is neither
an inquiry nor trial. It is within the exclusive domain of
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the police to investigate and is independent of any
control by the Magistrate. The sphere of activity is clear
cut and well demarcated. Thus viewed, we do not
perceive any error in the order passed by the High
Court refusing to grant a writ of habeas corpus as the
detention by virtue of the judicial order passed by the
Magistrate remanding the accused to custody is valid in
law.”
9. In the present case, it is not disputed that the
petitioner was arrested on 05.08.2025. The arrest memo placed
on record bears the signature of the petitioner dated 05.08.2025,
which clearly evidences his arrest on that date. The fardbeyan is
also dated 05.08.2025, while the formal FIR was registered on
06.08.2025. The difference between the date of fardbeyan and
the date of registration of FIR is procedural in nature and does
not render the arrest or custody illegal.
10. So far as the alleged delay in production is
concerned, the materials on record (Annexure P-1 series, page
45 to the writ application) indicate that immediately after arrest,
the petitioner was hospitalized at D.M.C.H., Darbhanga, and
subsequently referred to P.M.C.H., Patna due to his critical
medical condition. The police authorities informed the
concerned Court regarding his medical status and indicated that
he would be produced upon being declared fit by the attending
doctors. The petitioner was thereafter produced before the
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learned Chief Judicial Magistrate on 12.08.2025 and remanded
to judicial custody.
11. In the facts of the present case, the delay in
physical production stands satisfactorily explained on medical
grounds. It cannot be termed as unlawful or mala fide detention.
The constitutional mandate under Article 22(2) is intended to
prevent arbitrary detention; however, where production is
delayed due to genuine medical exigency and the Court has
been informed, such delay does not ipso facto render custody
illegal.
12. With respect to the contention regarding non-
communication of grounds of arrest, the arrest memo bearing
the petitioner’s signature dated 05.08.2025 indicates that he was
duly apprised of the fact of arrest. No cogent material has been
placed to substantiate the allegation that the grounds of arrest
were not communicated. Mere bald assertion is insufficient to
invalidate custody. In Union of India v. Paul Manickam,
(2003) 8 SCC 342, the Hon’ble Supreme Court has observed as
follows:
“19..While dealing with a habeas corpus application
undue importance is not to be attached to technicalities,
but at the same time where the court is satisfied that an
attempt has been made to deflect the course of justice
by letting loose red herrings the court has to take
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serious note of unclean approach.”
13. Applying the aforesaid principles, this Court
finds that the petitioner is presently in custody pursuant to a
judicial remand order dated 12.08.2025 passed by a court of
competent jurisdiction. There is no material to demonstrate that
the said remand order is without jurisdiction or a nullity.
14. Even assuming procedural irregularities
occurred at the stage of arrest or initial custody, the subsequent
judicial remand validates the detention. Habeas Corpus is not a
remedy to challenge the correctness or merits of a judicial
remand or to probe disputed facts of investigation.
15. In the considered opinion of this Court, the
facts of the present case do not disclose any violation of Section
58 of the Bharatiya Nagarik Suraksha Sanhita, 2023, nor of
Section 47 thereof. The delay in production stands explained by
medical circumstances, and the arrest memo bearing the
petitioner’s signature negates the allegation of non-
communication of arrest.
16. Accordingly, the Court finds that the custody of
the petitioner is not illegal or without authority of law rather he
is in judicial custody in a criminal case being Benta P.S. Case
No. 133 of 2025. No case is made out for issuance of a writ in
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the nature of Habeas Corpus. The issue is, therefore, answered
in the negative.
17. The present writ petition, therefore, stands
dismissed. It is clarified that dismissal of this petition shall not
preclude the petitioner from availing other remedies available
under law.
18. Pending application(s), if any, shall also stand
disposed of.
(Sudhir Singh, J)
(Rajesh Kumar Verma, J)
Sujit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 17.02.2026
Transmission Date NA
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