Kolkata: In a case relating to alleged illegal arrest and custodial torture, the Calcutta High Court noted that an order of the criminal court, even if it is suffering from infirmity, cannot be challenged by way of an application under Article 226 (writ power of High Courts) of the Constitution of India when alternative remedy is available under statute.
The bench of Justice Tirthankar Ghosh was moved by the petitioner, mother of the accused who was arrested on April 19, 2025 by Bidhannagar (North) Police Station in a case relating to alleged sexual intercourse with false promise of marriage (Section 69 of the BNS).
The petitioner challenged the arrest’s legality, alleging procedural violations and custodial torture, seeking bail for the accused and action against the investigating officer.
The petitioner’s counsel argued that the arrest violated Article 22(1) of the Constitution, as no relatives were informed, and the arrest-inspection memo lacked meaningful grounds of arrest. Allegations of physical assault in custody were raised, supported by a petition to the Additional Chief Judicial Magistrate (ACJM), Bidhannagar, on April 28, 2025, which was ignored, leading to bail rejection. The state’s counsel argued the writ petition was non-maintainable under Article 226, as statutory remedies (appeal/revision) were available. The state contended that judicial remand orders by the magistrate cannot be challenged via writs.
The court noted the following from the submission made by the state: “…power of the High Court to interfere under Article 226 would be warranted only when the decision is vitiated by an apparent error of law i.e. when the error is apparent on the face of the record and is self-evident.”
The court observed that challenges to illegal arrests require habeas corpus petitions before a division bench, per Calcutta High Court Rules. Thus, the writ petition was dismissed as non-maintainable, without addressing custodial torture or bail merits.