No habeas corpus while in remand on judicial order: SC

NEW DELHI: The Supreme Court has put a lid on a recent trend where high profile economic offenders got bail from Delhi high court by exploiting a grey area in the law.

A bench of justices AM Sapre and UU Lalit recently cancelled bail granted by Delhi high court to Rahul Modi and Mukesh Modi, accused of duping investors of over Rs 200 crore through a dubious Ponzi scheme run by their Gujarat based, Adarsh Credit Cooperative Society.

Both were released by the Delhi high court on a habeas corpus (unlawful detention or imprisonment) plea even though they were sent on remand by a Gurgaon court after arrest by the serious fraud investigation office.

In the process the SC ended any scope for confusion and held that a habeas corpus petition can't be entertained to grant interim bail when an accused is on remand by a judicial order. It asked the brothers to surrender before the Gurgaon court which will now take a call if they deserve bail.

Over the past year the serious fraud investigation office and the Enforcement Directorate have struggled to keep economic offenders like Rahul Modi and Mukesh Modi and former promoter of Bhushan Steel Neeraj Singal behind bars as they challenged the constitutional validity of PMLA provisions and got bail in habeas corpus petitions from the high court.

Recently, alleged lobbyist Deepak Talwar too filed a similar petition in the high court where a bench of justices Siddharth Mridul and Manoj Ohri earlier sought the response of the Enforcement Directorate (ED). On the last date of hearing Justice Mridul however recused from the matter.

Sources told TOI that following SC ruling, SFIO wants to seek cancellation of Neeraj Singal's bail granted in August last year by a bench of justices S Muralidhar and Vinod Goel on a habeas corpus filed by Singal's mother.

In each of these matters, solicitor general Tushar Mehta on behalf of the agencies has opposed grant of bail in such a fashion, pointing out that the accused were remanded in custody by a magistrate or a judicial order and in absence of a proper bail plea, no relief could be given.

SC saw merit in these arguments when it stressed that "The act of directing remand of an accused is thus held to be a judicial function and the challenge to the order of remand is not to be entertained in a habeas corpus petition," further noting that HC took up Modi brother's case when there were "orders of remand passed by the judicial magistrate as well as the special court Gurugram."

The apex court added that HC should not have heard such a petition since the petitioner didn't challenge the "legality, validity and correctness of the order or remand" before it in the habeas corpus matters.