MANUBHAI RATILAL PATEL TR. USHABENversusSTATE OF GUJARAT & ORS.

                     [2012] 8 S.C.R. 993


        MANUBHAI RATILAL PATEL TR. USHABEN                        A
                             v.
               STATE OF GUJARAT & ORS.
            (Criminal Appeal No. 1572 of 2012)

                   SEPTEMBER 28, 2012
                                                                  B
    [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

     CONSTITUTION OF /NOIA, 1950:

      Art.226 - Petition for writ of habeas corpus challenging c
the order of remand -Held: A writ of habeas corpus is not to
be entertained when a person is committed to judicial custody
or police custody by the competent court by an order which
prima facie does not appear to be without jurisdiction or
passed in an absolutely mechanical manner or wholly illegal 0
- The effect of order of High Court regarding stay of
investigation could only have bearing on the action of
investigating agency - Investigation is neither an inquiry nor
a trial - It is within the exclusive domain of police to investigate
and is independent of any control by the Magistrate - The E
sphere of activity is clear cut and well demarcated - Thus
viewed, there is no error in the order passed by High Court
refusing to grant a writ of habeas corpus as the detention by
virtue of judicial order passed by the Magistrate remanding
the accused to custody is valid in Jaw.
                                                                  F
    CODE OF CRIMINAL PROCEDURE, 1973:

    s.2(h) - 'Investigation' - Explained.

     An FIR for offences punishable u/s 467, 468, 471, 409
and 114 IPC was registered against the appellant on               G
20.6.2012. He filed a petition u/s 482 Cr.P.C. in the High
Court for quashing of the FIR. Meanwhile, the appellant
was arrested on 16.7.2012. On 17.7.2012, the Magistrate

                             993                                  H
    994      SUPREME COURT REPORTS                [2012] 8 S.C.R.


A remanded him to police custody. On 17.7.2012, the High
  Court stayed the further proceedings in respect of the
  investigation. On 19. 7.2012, the appellant filed an
  application for bail u/s 439 Cr.P.C. which was declined by
  the Magistrate. The Sessions Judge rejected the prayer
B for grant of interim bail and fixed the bail application for
  hearing. The appellant then filed a habeas corpus petition
  before the High Court contending that since the
  investigation was stayed by the High Court in exercise
  of power u/s 482 Cr.P.C., the Magistrate could not have
c exercised the powers u/s 167(2) Cr.P.C. remanding him
  either to police or judicial custody, and as such, his
  detention was illegal and non est in law. The High Court
  dismissed the writ petition.

      In the instant appeal filed by the accused, it was
D contended that once there was stay of the investigation,
  the detention was unsustainable.

          Dismissing the appeal, the Court

E         HELD: 1.1 The principle laid down in Kanu Sanyal*,
    is that any infirmity in the detention of the petitioner at the
    initial stage cannot invalidate the subsequent detention
    and the same has to be judged on its own merits. [Para
    21] [1007-E-F]

F      *Kanu Sanyal v: Dist. Magistrate, Darjeeling and others
  1974 (3) SCR 279=AIR 1974 SC 510; Naranjan Singh v.
  State of Punjab 1952 SCR 395 =AIR 1952 SC 106; Co/. Dr.
  8. Ramachandra Rao v. The State of Orissa and others AIR
  1971 SC 2197; Talib Hussain v. State of Jammu and
G Kashmir AIR 1971 SC 62 and Sanjay Dutt v. State through
                                                  =
  C.8.1., Bombay (II) 1994 (3) Suppl. SCR 263 (1994) 5 SCC
    410 - referred to.

       1.2 Keeping in view the concepts with regard to the
H writ of habeas corpus, especially pertaining to an order
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 995
                OF GUJARAT
passed by the Magistrate at the time of production of the        A
accused, it is necessary to advert to the schematic
postulates under the Code of Criminal Procedure, 1973
relating to remand. There are two provisions in the Code
which provide for remand, i.e., ss. 167 and 309. The
Magistrate has the authority u/s 167(2) to direct for            B
detention of the accused in such custody, i.e., police or
judicial, if he thinks that further detention is necessary. It
is obligatory on the part of the Magistrate to apply his
mind and not to pass an order of remand automatically
or in a mechanical manner. The exercise of jurisdiction          c
clearly shows that the act of directing remand of an
accused is fundamentally a judicial function, and while
doing so the Magistrate does not act in executive
capacity. [Para 23-25) [1008-A-C-F; 1009-B]

     Ranjit Singh v. The State of Pepsu (now Punjab) 1959        D
Suppl. SCR 727 =AIR 1959 SC 843; Kanu Sanyal v. District
Magistrate, Darjeeling and others 1974 (1) SCR 621= AIR
1973 SC 2684; Ummu Sabeena v. State of Kera/a and others
2011 (13) SCR 185 = (2011) 10 SCC 781; Re. Madhu Limaye
and others 1969 (3) SCR 154 =AIR 1969 SC 1014; Ram               E
Narayan Singh v. State of Delhi 1953 SCR 652 =AIR 1953
SC 277; Central Bureau of Investigation, Special
Investigation Cell-I, New Delhi v. Anupam J. Kulkarni 1992
(3) SCR 158 =AIR 1992 SC 1768 - referred to.
                                                                 F
    Secretary of State for Home Affairs v. O'Brien (1923) AC
603 (609) and Greene v. Secretary of States for Home Affairs
1942 AC 284 - referred to.

    P. Ramanatha Aiyar's Law Lexicon (1997 edition) and
Halsbury's Laws of England, 4th Edn. Vol. 11, para 1454 -        G
referred to.

     1.3 The term "investigation" as defined in s.2(h) of
the Code, includes all the proceedings under the Code
for the collection of evidence conducted by a police             H
   996       SUPREME COURT REPORTS              [2012) 8 S.C.R.


A officer or by any person (other than a Magistrate) who is
  authorised by a Magistrate in this behalf. [Para 26] [1009-
  C-D]

      H.N. Rishbud and another v. State of Delhi 1955 SCR
  1150 = AIR 1955 SC 196; Adri Dharan Das v. State of West
8
                               =
  Bengal 2005 (2) SCR 188 AIR 2005 SC 1057; Niranjan
                                                    =
  Singh v. State of Uttar Pradesh 1956 SCR 734 AIR 1957
  SC 142; S.N. Sharma v. Bipen Kumar Tiwari 1970 (3) SCR
  946    =
         (1970) 1 SCC 653 and State of Bihar v. J.A. C.
                                           =
C Saldanha and others 1980 (2) SCR 16 (1980) 1 SCC 554
   - referred to.

       1.4 In the instant case, the arrest had taken place a
  day prior to the passing of order of stay. It is also manifest
  that the order of remand was passed by the Magistrate
D after considering the allegations in the FIR but not in a
  routine or mechanical manner. It has to be borne in mind
  that the effect of the order of the High Court regarding
  stay of investigation could only have bearing on the
  action of the investigating agency. The order of remand
E which is a judicial act, does not suffer from any infirmity.
  [Para 32] [1010-E-F]

       1.5 It is worthy to note that the investigation had
  already commenced and as a resultant consequence, the
  accused was arrested. Thus, the order of remand cannot
F be regarded as untenable in law. It is well accepted
  principle that a writ of habeas corpus is not to be
  entertained when a person is committed to judicial
  custody or police custody by the competent court by an
  order which prima facie does not appear to be without
G jurisdiction or passed in an absolutely mechanical
  manner or wholly illegal. [Para 32] [1011-A-B]

      1.6 The court is required to scrutinize the legality or
  otherwise of the order of detention which has been
H passed. Unless the court is satisfied that a person has
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 997
                OF GUJARAT

been committed to jail custody by virtue of an order that      A
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 the    B
police to investigate and is independent of any control
by the Magistrate. The sphere of activity is clear cut and
well demarcated. Thus viewed, there is no 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    c
order passed by the Magistrate remanding the accused
to custody is valid in law. [Para 32] [1011-C-E]

                    Case Law Reference:
    (1923) AC 603 (609)        referred to         Para 13     D
    1942 AC 284                referred to         Para 14
    1959 Suppl. SCR 727        referred to         Para 14
    1974 (1) SCR 621           referred to         Para 15
                                                               E
    2011 (13) SCR 185          referred to         Para 16
    AIR 1971 SC 2197           referred to        Para 18
    1969 (3) SCR 154           referred to        Para 19
                                                               F
    1953 SCR 652               referred to        Para 19
    1952 SCR 395               referred to        Para 20
    AIR 1971 SC 62             referred to        Para 20
    1994 (3) Suppl. SCR 263 referred to           Para 22      G

    1974 (3) SCR 279           referred to        Para 20
    1992 (3) SCR 158           referred to        Para 25
    1955 SCR 1150              referred to        Para 27      H
    998      SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A         2005 (2) SCR 188            referred to          Para 28

          1956 SCR 734                referred to          Para 9

          1970 (3) SCR 946            referred to          Para 30

          1980 (2) SCR 16             referred to          Para 31
B
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1572 of 2012.

        From the Judgment & Order dated 07.08.2012 of the High
c   Court of Gujarat at Ahmedabad in Special Criminal Application
    No. 2207 of 2012.

         Sushi! Kumar Jain, B.M. Mangukiya, Puneet Jain, Christi
    Jain, Pratibha Jain for the Appellant.

D       Hemantika Wahi, Jesal, Nandani Gupta for the
    Respondent.

          The Judgment of the Court was delivered by

          DIPAK MISRA, J. 1. Leave granted.
E
       2. The appellant was an accused in FIR No. I-CR No. 56/
  12 registered at Pethapur Police Station on 2oth of June, 2012
  for offences punishable under Sections 467, 468, 471, 409 and
  114 of the Indian Penal Code (for short 'the IPC'). Challenging
F the registration of the FIR and the investigation, the accused-
  appellant (hereinafter referred to as "the accused") preferred
  Criminal Miscellaneous Application No. 10303 of 2012 on
  11. 7 .2012 under Section 482 of the Code of Criminal
  Procedure (for brevity "the Code") in the High Court of Gujarat
G at Ahmedabad for quashing of the FIR. A prayer was also
  made for stay of further proceedings in respect of the
  investigation of I-CR No. 56/12.

          3. The unfurling of factual scenario further shows that the

H
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 999
       OF GUJARAT [DIPAK MISRA, J.]

matter was taken up on 17. 7.2012 and the High Court issued          A
notice and fixed the returnable date on 7.8.2012 and allowed
the interim relief in terms of prayer No. (C} which pertained to
stay of further proceedings in respect of the investigation.

      4. The exposition of facts reveals that the accused was
                                                                     8
arrested on 16.7.2012 and produced before the learned Judicial
Magistrate First Class, Gandhinagar at 4.00 p.m. on 17.7.2012.
The police prayed for remand of the accused to police custody
which was granted by the learned Magistrate upto 2.00 p.m.
on 19.7.2012. On 18.7.2012, it was brought to the notice of the      C
concerned investigation agency about the stay order passed
by the High Court on 17.7.2012 and prayer was made not to
proceed further with the investigation in obedience to the order
passed by the High Court. It is pertinent to note that an
application for regular bail under Section 439 of the Code was
filed on 19.7.2012 before the learned Magistrate. Apart from         D
other grounds, it was highlighted that when a petition was
pending before the High Court for quashment of the First
Information Report and a stay order had been passed
pertaining to further investigation, the detention was illegal and
hence, the accused was entitled to be admitted to bail.              E

      5. The learned Magistrate dwelled upon the allegations
 made against the accused and declined to release him on bail
 regard being had to the nature of offences. Dealing with the
order passed by the High Court, he observed that the order           F
 passed by the Hon'ble High Court pertained to stay of further
investigation although no investigation was required to be
carried out during judicial custody and, as the accused was
involved in commission of grievous offences, it would not be
just to enlarge him on bail.
                                                                     G
     6. Being aggrieved by the aforesaid order, the accused
preferred Criminal Miscellaneous Application No. 539 of 2012
in the Court of learned Sessions Judge, Gandhinagar and also
prayed for grant of interim bail. The learned Sessions Judge
rejected the praver for grant of interim bail and fixed the main     H
    1000    SUPREME COURT REPORTS                     [2012] 8 S.C.R.


A   application for hearing on 24.7.2012.

        7. Dissatisfied with the aforesaid orders, the accused
  preferred a habeas corpus petition before the High Court of
  Gujarat forming the subject matter of Special Criminal
  Application No. 2207 of 2012. It was contended before the High
8
  Court that since the investigation was stayed by the High Court
  in exercise of power under Section 482 of the Code, the
  learned Magistrate could not have exercised power under
  Section 167(2) of the Code remanding the accused either to
  police or judicial custody. It was submitted that the power of the
C Magistrate remanding the accused to custody during the course
  of investigation stood eclipsed by the order of stay passed by
  the High Court and, therefore, the detention was absolutely
  illegal and non est in law. It was also urged that as the detention
  of the accused was unlawful, a writ of habeas corpus would lie
D and he deserved to be set at liberty forthwith as long as the
  stay order was operative.

       8. The aforesaid stand put forth by the learned counsel
  was combated by the State contending, inter alia, that it could
E not be said that there had been no investigation as arrest had
  already taken place and hence, stay of further investigation
  would not nullify the order of remand, be it a remand to police
  custody or judicial custody. Highlighting the said stance', it was
  propounded that the order of remand could not be treated as
F impermissible warranting interference by the High Court in
  exercise of jurisdiction of writ of habeas corpus.

         9. The High Court adverted to the chronology of events and
    held thus: -

G       "From the chronology of events as emerging from the
        petition as well as affidavit-in-reply, it is not in dispute that
        the arrest of the petitioner was effected on 16/07/2012.
        Whereas the quashing petition came to be filed on 17/07/
        2012 and the stay order was granted on 17/07/2012 at
H       about 04.30 p.m. and the remand of the accuse1:1---
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 1001
       OF GUJARAT [DIPAK MISRA, J.)

     petitioner to police custody was granted on 17/07/2012 till       A
     02.00 p.m. of 19/07/2012. It is also required to be noted
     that order passed by learned JMFC has not been
     challenged anywhere and has attained finality. Thereafter,
     the order passed by this Court in CRMA No. 10303 of
     2012 has been served on the Police authority on 17/07/            B
     2012 at 09.30 p.m. On the next day i.e. on 18/07/2012,
     the Investigating Officer seems to have informed learned
     JMFC about the stay granted by the High Court and has
     attended High Court in connection with anticipatory bail
     application preferred by the petitioner. It is also not the       c
     case of the petitioner that after the service of order of stay,
     any other investigation has been carried by the
     Investigating Officer. On 19/0712012 itself the applicant
     preferred an application for bail under Section 437 of the
     Code, which came to be rejected and the accused was
                                                                       0
     remanded to judicial custody and as such the petitioner -
     accused is in judicial custody as on now. It is pertinent to
     note that the learned JMFC has rightly observed in his
     order upon bail application that the High Court has stayed
     further investigation only."
                                                                       E
     10. After so stating, the High. Court dealt with the issue
whether the custody of the accused could be said to be illegal.
It was opined by the High Court that it was not possible to
accept the stand that once the investigation was stayed, there
could not have been exercise of jurisdiction under Section             F
167(2) of the Code, for stay of investigation would not eradicate
the FIR or the investigation that had been already carried out
pursuant to lodging of FIR. It was further opined that it was only
an ad-interim order and if the stay order would eventually be
vacated or the quashing petition would not be entertained, the         G
investigation would be continued. The High Court further
observed that solely because the investigation was stayed, it
would not be apposite to say that there was no investigation
and the order passed by the learned Magistrate was flawed.
                                                                       H
     11. Addressing to the issue of remand. the Hiah Court
    1002     SUPREME COURT REPORTS                   (2012] 8 S.C.R.


A opined that the order of remand of the accused to custody could
  not be said to be a part of the investigation and hence, the said
  order was not in conflict with the order passed under Section
  482 of the Code of Criminal Procedure in Criminal
  Miscella.neous Application No. 10303 of 2012.
B Reference was made to Section 2(h) of the Code which defines
  'investigation' and it was ruled that the order passed by the
  learned Magistrate could not be termed as a part of the
  investigation. Eventually, the High Court opined that it could not
  be held that when the order was passed by the learned JMFC,
c there was no investigation and, therefore, there was no force
  in the argument that the learned JMFC could not have
  remanded the accused in such a situation in exercise of powers
  under Section 167 of the Code, and secondly, the act of the
  learned JMFC remanding the accused to custody is a judicial
  act which cannot be termed as part of the investigation and
0
  cannot be considered to have been covered under the stay
  granted by the High Court in CRMA No. 10303 of 2012. It was
  further held that illegal or unauthorised detention or confinement
  is a sine qua non for entertaining a petition for writ of habeas
E corpus and the custody of the petitioner being in pursuance of
  a judicial act, it could not be termed as illegal.

          12. At this juncture, it is seemly to note that the appellant
    had knocked at the doors of the High Court in a habeas corpus
    petition. The writ of habeas corpus has always been given due
F   signification as an effective method to ensure release of the
    detained person from prison. In P. Ramanatha Aiyar's Law
    Lexicon (1997 edition), while defining "habeas corpus", apart
    from other aspects, the following has been stated: -

         "The ancient prerogative writ of habeas corpus takes its
G
         name from the two mandatory words habeas. corpus,
         which it contained at the time when it, in common with all
         forms of legal process, was framed in Latin. The general
         purpose of these writs, as their name indicates, was to
         obtain the production of an individual."
H
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 1003
       OF GUJARAT [DIPAK MISRA, J.]
     13. In Secretary of State for Home Affairs v. O'Brien 1, it     A
has been observed that it is perhaps the most important writ
known to the constitutional law of England affording as it does
a swift and imperative remedy in all cases of illegal restraint
or confinement. It is of immemorial antiquity, an instance of its
use occurring in the thirty third year of Edward I. It has through   B
the ages been jealously maintained by the courts of law as a
check upon the illegal usurpation of power by the executive at
the cost of liege.

     14. In Ranjit Singh v. The State of Pepsu (now Punjab)2,        C
after referring to Greene v. Secretary of States for Home
Affairs 3 , this Court observed that the whole object of
proceedings for a writ of habeas corpus is to make them
expeditious, to keep them as free from technicality as possible
and to keep them as simple as possible. The Bench quoted
Lord Wright who, in Greene's case, had stated thus:                  D

      "The incalculable value of Habeas Corpus is that it enables
      the immediate determination of the right to the appellant's
      freedom."
                                                                     E
      Emphasis was laid on the satisfaction of the court relating
      to justifiability and legality of the custody.

      15. In Kanu Sanyal v. District Magistrate, Darjeeling and
others•, it was laid down that the writ of habeas corpus deals
with the machinery of justice, not the substantive law. The object   F
of the writ is to secure release of a person who is illegally
restrained of his liberty.

    16. Speaking about the importance of the writ of habeas
corpus, a two-Judge Bench, in Ummu Sabeena v. State of               G

1.    (1923) AC 603 (609).
2.    AIR 1959 SC 843.
3.    1942 AC 284.
 4.   AIR 1973 SC 2684.                                              H
     1004      SUPREME COURT REPORTS                    [2012] 8 S.C.R.


A Kera/a and others5, has observed as follows: -

           " ... the writ of habeas corpus is the oldest writ evolved by
           the common law of England to protect the individual liberty
           against its invasion in the hands of the executive or may
           be also at the instance of private persons. This principle
B
           of habeas corpus has been incorporated in our
           constitutional law and we are of the opinion that in a
           democratic republic like India where Judges function under
           a written Constitution and which has a chapter on
           fundamental rights, to protect individual liberty the Judges
c          owe a duty to safeguard the liberty not only of the citizens
           but also of all persons within the territory of India. The most
           effective way of doing the same is by way of exercise of
           power by the Court by issuing a writ of habeas corpus."

D In the said case, a reference was made to Ha!sbury's Laws of
     England, 4th Edn. Vol. 11, para 1454 to highlight that a writ of
     habeas corpus is a writ of highest constitutional importance
     being a remedy available to the lowliest citizen against the most
     powerful authority.
E
        17. Having stated about the significance of the writ of
  habeas corpus as a weapon for protection of individual liberty
  through judicial process, it is condign to refer to certain
  authorities to appreciate how this Court has dwelled upon and
  expressed its views pertaining to the legality of the order of
F detention, especially that ensuing from the order of the court
  when an accused is produced in custody before a Magistrate
  after arrest. It is also worthy to note that the opinion of this Court
  relating to the relevant stage of delineation for the purpose of
  adjudicating the legality of the order of detention is of immense
G importance for the present case.
           18. In Co/. Dr. B. Ramachandra Rao v. The State of
    . Orissa and others 6, it was opined that a writ of habeas corpus
     s.   (2011) 10 sec 781.
H 6. AIR 1971 SC 2197.
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 1005
       OF GUJARAT [DIPAK MISRA. J.]

is not granted where a person is committed to jail custody by. A
a competent court by an order which prima facie does not
appear to be without jurisdiction or wholly illegal.

     19. In Re. Madhu Limaye and others 7, the Court referred
to the decision in Ram Narayan Singh v. State of Delhi8 and            B
opined that the court must have regard to the legality or
otherwise of the detention at the time of return.

      20. In Kanu Sanyal v. Dist. Magistrate, Darjeeling and
others9, contentions were raised to the effect that the initial
detention of the petitioner in District Jail, Darjeeling was illegal   C
because he was detained without being informed of the
grounds for his arrest as required under clause (i) of Article 22
of the Constitution and that the Sub-Divisional Magistrate,
Darjeeling had no jurisdiction to try and, therefore, he could not
authorise the detention of the petitioner under Section 167 of         D
the Code. The two-Judge Bench adverted to the aforesaid
aspects and referred to the earlier decisions in Naranjan Singh
v. State of Punjab 10, Ram Narain Singh (supra). B.R. Rao
(Supra) and Talib Hussain v. State of Jammu and Kashmir"
and noted that three views had been taken by this Court at             E
various times pertaining to the relevant date to determine the
justifiability of the detention and opined as follows:-

     "This Court speaking through Wanchoo, J. (as he then
     was) said in A.K. Gopalan v. Government of India;
     [(1966) 2 SCR 427 =(AIR 1966 SC 816)]. "It is well settled
                                                                       F
     that in dealing with the petition for habeas corpus the Court
     is to see whether the detention on the date on which the
     application is made to the Court is legal, if nothing more
     has intervened between the date of the application and the
                                                                       G
7.   AIR 1969 SC 1014.
8.   AIR 1953 SC 277.
9.   AIR 1974 SC 510
 10. AIR 1952 SC 106
 11. AIR 1971 SC 62.                                                   H
    1006   SUPREME COURT REPORTS                  [2012] 8 S.C.R.


A      date of the hearing". In two early decisions of this Court,
       however, namely, Naranjan Singh v. State of Punjab,
       [(1952 SCR 395) =AIR 1952 SC 106)] and Ram Narain
       Singh v. State of Delhi, [(1953 SCR 652) = (AIR 1953 SC
       277)] a slightly different view was expressed and that view
B     was reiterated by this Court in B. R. Rao v. State of Orissa
       (AIR 1971 SC 2197) where ii was said; "In habeas corpus
      the Court is to have regard to the legality or otherwise of
      the detention at the time of the return and not with reference
      to the institution of the proceedings " And yet in another
c     decision cf this Court in Talib Husain v. State of Jammu
       & Kashmir (AIR 1971 SC 62) Mr. Justice Dua, sitting as
      a Single Judge, presumably in the vacation, observed that
      "in habeas corpus proceedings the Court has to consider
      the legality of the detention on the date of the hearing." Of
      these three views taken by the Court at different times,
D
      the second appears to be more in consonance with the
      law and practice in England and may be taken as having
      received the largest measure of approval in India, though
      the third view also cannot be discarded as incorrect,
      because an inquiry whether the detention is legal or not
E     at the date of hearing of the application for habeas
      corpus would be quite relevant, for the simple reason that
      if on that date the detention is legal, the Court cannot
      order release of the person detained by issuing a writ of
      habeas corpus. But, for the purpose of the present case,
F     it is immaterial which of these three views is accepted as
      correct, for it is clear that, whichever be the correct view,
      the earliest date with reference to which the legality of
      detention may be examined is the date of filing of the
      application for habeas corpus and the Court is not, to
G     quote the words of Mr. Justice Dua in AIR 1971 SC 2197
      "concerned with a date prior to the initiation of the
      proceedings for a writ of habeas corpus"."

                                             (emphasis supplied)
H
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 1007
       OF GUJARAT [DIPAK MISRA, J.]

     After so stating, the Bench opined that for adjudication in          A
the said case, it was immaterial which of the three views was
accepted as correct but eventually referred to paragraph 7 in
the case of B.R. Rao (supra) wherein the Court had expressed
the view in the following manner: -
                                                                          B
     " .... in habeas corpus proceedings the court is to have
     regard to the legality or otherwise of the detention at the
     time of the return and not with reference to the institution
     of the proceedings."

Eventually, the Bench ruled thus: -                                       c
     ''The production of the petitioner before the Special Judge,
     Vizakhapatnam, could not, therefore, be said to be illegal
     and his subsequent detention in the Central Jail,
     Vizakhapatnam, pursuant to the orders made by the                    D
     Special Judge, Vizakhapatnam, pending trial must be held
     to be valid. This Court pointed out in AIR 1971 SC 2197
     that a writ of habeas corpus cannot be granted "where a
     person is committed to Jail custody by a competent court
     by an order which prima facie does not appear to be                  E
     without jurisdiction or wholly illegal"."

      21. The principle laid down in Kanu Sanyal (supra), thus,
is that any infirmity in the detention of the petitioner at the initial
stage cannot invalidate the subsequent detention and the same
has to be judged on its own merits.                                       F

     22. At this juncture, we may profitably refer to the
Constitution Bench de_cision in Sanjay Dutt v. State through
C.B.I., Bombay (//)1 2 wherein it has been opined thus: -
                                                                          G
     "It is settled by Constitution Bench decisions that a petition
     seeking the writ of habeas corpus on the ground of
     absence of a_. valid order of remand or detention of the
     accused, has to be dismissed, if on the date of return of

12. (1994) s sec 410.                                                     H
    1008     SUPREME COURT REPORTS                    [2012] 8 S.C.R.


A        the rule, the custody or detention is on the basis of a valid
         order."

       23. Keeping in view the aforesaid concepts with regard
  to the writ of habeas corpus, especially pertaining to an order
  passed by the learned Magistrate at the time of production of
8
  the accused, it is necessary to advert to the schematic
  postulates under the Code relating to remand. There are two
  provisions in the Code which provide for remand, i.e., Sections
  167 and 309. The Magistrate has the authority under Section
  167(2) of the Code to direct for detention of the accused in such
C custody, i.e., police or judicial, if he thinks that further detention
  is necessary.

          24. The act of directing remand of an accused is
    fundamentally a judicial function. The Magistrate does not act
D    in executive capacity while ordering the detention of an
    accused. While exercising this judicial act, it is obligatory on
    the part of the Magistrate to satisfy himself whether the materials
    placed before him justify such a remand or, to put it differently,
    whether there exist reasonable grounds to commit the accused
E   to custody and extend his remand. The purpose of remand as
    postulated under Section 167 is that investigation cannot be
    completed within 24 hours. It enables the Magistrate to see that
    the remand is really necessary. This requires the investigating
    agency to send the case diary along with the remand report so
F   that the Magistrate can appreciate the factual scenario and
    apply his mind whether there is a warrant for police remand or
    justification for judicial remand or there is no need for any
    remand at all. It is obligatory on the part of the Magistrate to
    apply his mind and not to pass an order of remand automatically
G   or in a mechanical manner. It is apt to note that in Madhu
    Limaye (supra), it has been stated that once it is shown that
    the arrests made by the police officers were illegal, it was
    necessary for the State to establish that at the stage of remand,
    the Magistrate directed detention in jail custody after applying
    his mind to all relevant matters.
H
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 1009
       OF GUJARAT [DIPAK MISRA, J.]

    25. In Central Bureau of Investigation, Special                  A
Investigation Cell-I, New Delhi v. Anupam J. Kulkarni 13, it has
been stated that where an accused is placed in police custody
for the maximum period of fifteen days allowed under law either
pursuant to a single order of remand or more than one order,
when the remand is restricted on each occasion to a lesser           B
number of days, the further detention of the accused, if
warranted, has to be necessarily to judicial custody and not
otherwise. Thus, the exercise of jurisdiction clearly shows that
the Magistrate performs a judicial act.

    26. Presently, we shall advert to the concept of
                                                                     c
investigation. The term "investigation" has been defined in
Section 2(h) of the Code. It reads as follows: -

       "Investigation" includes all the proceedings under this
       Code for the collection of evidence conducted by a police     D
       officer or by any person (other than a Magistrate) who is
       authorised by a Magistrate in this behalf;"

      27. A three-Judge Bench in H.N. Rishbud and another v.
State of Delhi1 4, while dealing with "investigation", has stated    E
that under the Code, investigation consists generally of the
following steps: (1) Proceeding to the spot, (2) Ascertainment
of the facts and circumstances of the case, (3) Discovery and
arrest of the suspected offender, (4) Collection of evidence
relating to the commission of the offence which may consist of       F
(a) the examination of various persons (including the accused)
and the reduction of their statements into writing, if the officer
thinks fit, (b) the search of places or seizure of things
considered necessary for the investigation and to be produced
at the trial, and (5) Formation of the opinion as to whether on
the material collected, there is a case to place the accused         G
before a Magistrate for trial and, if so, taking the necessary
steps for the same by the filing of a charge-sheet under Section
173.
13. AIR 1992 SC 1768.
                                                                     H
14. AIR 1955 SC 196.
    1010     SUPREME COURT REPORTS                   [2012] 8 S.C.R.


A      28. In Adri Dharan Oas v. State of West Benga/1 5, ii has
  been opined that arrest is a part of the process of investigation
  intended to secure several purposes. The accused may have
  to be questioned in detail regarding the various facets of
  motive, preparation, commission and aftermath of the crime
B and the connection of other persons, if any, in the crime.
         29. In Niranjan Singh v. State of Uttar Pradesh 16, it has
  been laid down that investigation is not an inquiry or trial before
  the court and that is why the legislature did not contemplate any
  irregularity in investigation as of sufficient importance to vitiate
C or otherwise form any infirmity in the inquiry or trial.
         30. In S.N. Sharma v. Bipen Kumar Tiwari 17, it has been
    observed that the power of police to investigate is independent
    of any control by the Magistrate.
o        31. In State of Bihar v. J.A. C. Saldanha and others 18, it
    has been observed that there is a clear cut and well demarcated
    sphere of activity in the field of crime detection and crime
    punishment and further investigation of an offence is the field
    exclusively reserved for the executive in the police department.
E       32. Coming to the case at hand, it is evincible that the
  arrest had taken place a day prior to the passing of order of
  stay. It is also manifest that the order of remand was passed
  by the learned Magistrate after considering the allegations in
  the FIR but not in a routine or mechanical manner. It has to be
F borne in mind that the effect of the order of the High Court
  regarding slay of investigation could only have bearing on the
  action of the investigating agency. The order of remand which
  is a judicial act, as we perceive, does not suffer from any
  infirmity. The only ground that was highlighted before the High
G Court as well as before this Court is that once there is stay of
  investigation, the order of remand is sensitively susceptible
    15. AIR 2005 SC 1057.
    16. AIR 1957 SC 142.
    17. (1970) 1 sec 653.
H 18. (1980) 1 sec 554.
MANUBHAI RATILAL PATEL TR. USHABEN v. STATE 1011
       OF GUJARAT [DIPAK MISRA, J.]

and, therefore, as a logical corollary, the detention is A
unsustainable. It is worthy to note that the investigation had
already commenced and as a resultant consequence, the
accused was arrested. Thus, we are disposed to think that the
order of remand cannot be regarded as untenable in law. It is
well accepted principle that a writ of habeas corpus is not to B
be entertained when a person is committed to judicial custody
or police custody by the competent court by an order which
prima facie does not appear to be without jurisdiction or
passed in an absolutely mechanical manner or wholly illegal.
As has been stated in the cases of B.R. Rao (supra) and Kanu       c
Sanyal (supra), the court is required to scrutinize the legality
or otherwise of the order of detention which has been passed.
Unless the court is satisfied that a person has been committed
to jail custody by virtue of an ord~r that suffers from the vice of
lack of jurisdiction or absolute illegality, a writ of habeas corpus
                                                                     0
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
the police to investigate and is independent of any control by
the Magistrate. The sphere of activity is clear cut and well E
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.
                                                                     F
      33. Though we have not interfered with the order passed
by the High Court, yet we would request the High Court to
dispose of the Criminal Miscellaneous Application No. 10303
of 2012 within a period of six weeks. Liberty is granted to the
appellant to move the appropriate court for grant of bail, if so G
advised.
    34. Consequently, with the aforesaid observations
mentioned hereinabove, the appeal, being sans merit, stands
dismissed.

R.P.                                         Appeal dismissed. . H