Case Background
The petitioner is a citizen of the Islamic Republic of Iran. He was living in India on the strength of a refugee certificate issued by the United Nations High Commissioner for Refugees (UNHCR), New Delhi. According to him, this refugee status was valid since 2018 and the certificate was valid up to 13.06.2020.
On 28.12.2019 at about 10:00 PM, an immigration officer at Raxaul, namely Ajay Kumar Pankaj (AFRRO, ICP, Raxaul), gave a written report to the Station House Officer of Raxaul Police Station, East Champaran. He stated that the petitioner was going to Nepal via Raxaul and had come from Bodh Gaya by Indo-Nepal Bus Service. It was alleged that the petitioner was living in India illegally.
On the basis of this written information, Raxaul P.S. Case No. 478 of 2019 was registered on 29.12.2019. The case was for offences under Section 447 of the Indian Penal Code (criminal trespass) and Section 14(B) of the Foreigners Act, 1946. The petitioner was arrested, produced before the jurisdictional Magistrate and remanded to judicial custody in Central Jail, Motihari, East Champaran, where he continues to be lodged.
In 2021, while still in custody, the petitioner approached the Patna High Court in Criminal Writ Jurisdiction Case No. 606 of 2021. He sought a writ of habeas corpus for his immediate release and transfer to the custody of UNHCR, New Delhi. He also sought quashing of the FIR in Raxaul P.S. Case No. 478 of 2019 and any other appropriate relief.
What the Court Examined and Decided
The Division Bench of Hon’ble Mr. Justice Ashwani Kumar Singh and Hon’ble Mr. Justice Rajeev Ranjan Prasad heard the matter. Arguments were advanced by learned counsel for the petitioner, learned Additional Solicitor General of India assisted by counsel for the Union of India, and learned counsel for the State of Bihar.
The petitioner’s counsel argued that he was residing in India under a valid refugee certificate issued by UNHCR, New Delhi. He also had a valid passport issued by the Islamic Republic of Iran, valid up to 22.06.2023. He claimed to have entered India on the basis of a valid visa.
According to the petitioner, the allegation that he was living illegally in India was false and misleading. His case was that at the time of registration of the FIR on 29.12.2019, his UNHCR refugee certificate was still valid up to 13.06.2020. He said he had produced the documents before the immigration officer, but the officer intentionally concealed these facts and nevertheless got him arrested.
On this basis, the petitioner argued that Section 14(B) of the Foreigners Act, 1946 was not applicable to him. He also claimed that his detention in Central Jail, Motihari, on the strength of remand orders passed by the Magistrate since 29.12.2019, was wholly illegal and without jurisdiction. Therefore, he argued, a writ of habeas corpus for his release was maintainable and ought to be allowed. He requested that he be released from jail and handed over to the custody of UNHCR, New Delhi.
On the other side, the learned Additional Solicitor General of India, assisted by counsel, opposed the petition. He submitted that the investigation in Raxaul P.S. Case No. 478 of 2019 had already been completed. The police had submitted a charge-sheet under Section 173(2) of the Code of Criminal Procedure. The jurisdictional Magistrate had perused the police report and taken cognizance of the offence. Thus, the matter was already pending trial before the Magistrate.
The Union of India’s counsel argued that if the petitioner was aggrieved by the order of cognizance, he should have challenged that order before the appropriate forum. At this stage, in a writ petition under Article 226 of the Constitution of India, it could not be said that his detention was without jurisdiction when it was clearly based on judicial remand orders. He stressed that a writ of habeas corpus is not meant to bypass the regular criminal process when a competent court is already seised of the case.
The State of Bihar, through its counsel, supported the submissions of the Union of India.
The Patna High Court examined the FIR, the investigation and the subsequent steps. It recorded that the allegations in the FIR did disclose a cognizable offence. During investigation, the police had found those allegations to be true. Accordingly, a final report (charge-sheet) under Section 173(2) CrPC had been filed. On that basis, the Magistrate had taken cognizance, and the criminal case was now pending trial. The Court emphasised that in such a situation, the High Court could not look into the petitioner’s defence in a habeas corpus or writ petition in order to set aside the FIR or to declare his detention illegal.
The Bench then referred to several important judgments of the Supreme Court and a Full Bench decision of the Patna High Court on the scope of habeas corpus when a person is already in custody under orders of a competent court.
First, the Court discussed the Supreme Court’s decision in Saurabh Kumar vs. Jailor, Koneila Jail & Anr., (2014) 13 SCC 436. In that case, the petitioner, in judicial custody by order of a Magistrate, had filed a habeas corpus petition before the Supreme Court. The Supreme Court held that the only question in a habeas corpus petition is whether the person is in unlawful custody. Because Saurabh Kumar was in custody pursuant to a valid remand order of a competent court, his detention was not unlawful. The Court found a writ of habeas corpus “totally misplaced” and stated that the proper remedy was to seek bail, not habeas corpus.
Next, the Patna High Court relied on State of Maharashtra & Ors. vs. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745. There too, the Supreme Court held that a writ of habeas corpus cannot be maintained when the person is in police custody under remand orders of the jurisdictional Magistrate in connection with an ongoing investigation. The Supreme Court had explained that when such remand orders are in force, it cannot be treated as a case of continued illegal detention, and a habeas corpus petition is not maintainable unless the remand orders themselves are challenged.
The High Court then referred to Serious Fraud Investigation Office vs. Rahul Modi & Anr., (2019) 5 SCC 266. In that case, the Delhi High Court had released accused persons on a habeas corpus petition even though they were in judicial custody under valid remand orders. The Supreme Court set aside that decision, holding that directing remand is a judicial function, and the correctness of a remand order cannot be examined in a habeas corpus petition. If the remand is to be challenged, it must be done through proper appellate or revisional proceedings.
Finally, the Bench cited a Full Bench judgment of the Patna High Court in Shikha Kumari v. State of Bihar through Principal Secretary, Home (Police) Deptt. & Ors., 2020 (2) PLJR 15. The Full Bench had held clearly that a writ of habeas corpus is not maintainable if the detention is in custody pursuant to juridical orders passed by a Judicial Magistrate or a court of competent jurisdiction. It also held that an order of remand passed by such a Magistrate cannot be assailed or set aside in a habeas corpus petition.
After applying these authorities to the facts before it, the Patna High Court concluded that the petitioner’s situation was squarely covered by the above precedents. He was in judicial custody under remand orders passed by the jurisdictional Magistrate in a case where a cognizable offence had been disclosed, investigated and charge-sheeted, and cognizance had been taken. His detention, therefore, could not be called illegal for the purpose of habeas corpus.
Importantly, the Court did not decide on the truth or falsity of the petitioner’s claim about his refugee status, passport, visa or the correctness of invoking Section 14(B) of the Foreigners Act. It held that such defences could not be examined in a writ petition under Article 226 when the criminal case was already pending before the Magistrate. The proper course for the petitioner was to raise these points before the trial court or other competent forum, or to seek bail, rather than to seek habeas corpus.
Consequently, the Bench held that no case was made out for issuing a writ of habeas corpus or for quashing the FIR in this writ proceeding. The criminal writ petition was dismissed on 07.12.2021.
Why This Judgment Matters
This judgment is significant for foreign nationals, refugees and others who are arrested in Bihar and elsewhere in India. It clarifies that once a person is remanded to custody by a Magistrate in a criminal case where a cognizable offence has been alleged and charge-sheeted, a habeas corpus petition in the High Court is generally not the right remedy.
The Court makes it clear that even if the accused claims to have a strong defence—such as a valid visa, passport or refugee certificate—those issues must be raised before the trial court or through proper criminal procedures. Habeas corpus is meant to deal with illegal detention, not to short-circuit ongoing criminal cases.
For people in similar situations, the practical takeaway is that they should normally challenge the FIR, the cognizance order, or seek bail, instead of filing a habeas corpus petition when there is already a judicial remand order in force.
Legal Issues and Answers
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Issue: Can a person in judicial custody under remand orders of a Magistrate seek release by filing a writ of habeas corpus in the Patna High Court?
Answer: No. The Court held that when a person is in custody pursuant to valid remand orders in a cognizable offence case where charge-sheet has been filed and cognizance taken, a writ of habeas corpus is not maintainable. The detention is not unlawful and any challenge should be made through proper criminal proceedings. -
Issue: Can the High Court, in such a habeas corpus petition, quash the FIR or examine the accused’s defence, such as refugee status or valid visa?
Answer: No. The Court held that in a writ petition under Article 226, when the matter is already pending trial, the defence of the accused cannot be looked into for setting aside the FIR or declaring the detention illegal.
Cases Cited by the Court
- Saurabh Kumar vs. Jailor, Koneila Jail & Anr., (2014) 13 SCC 436
- State of Maharashtra & Ors. vs. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745
- Manubhai Ratilal Patel vs. State of Gujarat & Ors., (2013) 1 SCC 314
- Serious Fraud Investigation Office vs. Rahul Modi & Anr., (2019) 5 SCC 266
- Shikha Kumari v. State of Bihar through Principal Secretary, Home (Police) Deptt. & Ors., 2020 (2) PLJR 15 (Full Bench, Patna High Court)
Case Details
Case Number: Criminal Writ Jurisdiction Case No. 606 of 2021
Case Title: Hamed Akbari vs. The Union of India & Ors.
Coram: Hon’ble Mr. Justice Ashwani Kumar Singh and Hon’ble Mr. Justice Rajeev Ranjan Prasad
Date of Judgment: 07.12.2021
Citation: 2022(1) PLJR 89
Advocates:
- For the Petitioner: Mr. Nafisuzzoha, Advocate
- For the Union of India: Dr. Krishna Nandan Singh, Additional Solicitor General of India; Mr. Manoj Kumar Singh, CGC; Mr. Sriram Krishna, JC to ASG
- For the State of Bihar: Mr. Prabhu Narayan Sharma, AC
Nature of the Case: Criminal writ petition seeking habeas corpus and quashing of FIR (Raxaul P.S. Case No. 478 of 2019) under Section 447 IPC and Section 14(B) of the Foreigners Act, 1946.
Link to the Judgment: Click here to access the official Patna High Court judgment
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