Orissa HC Quashes Remand Order Passed Despite Subsisting Stay, Holds Trial Court Should Have Deferred Coercive Steps

The Orissa High Court set aside production warrant and police remand orders in an NDPS case, finding the trial court acted in defiance of a subsisting High Court protection order directing that no coercive action be taken against the accused.

The High Court of Orissa at Cuttack, in a petition filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, has quashed two orders passed by the Additional Sessions Judge-cum-Special Judge, Jeypore, dated 7 February 2026 and 10 February 2026. Those orders had directed the issuance of a production warrant and subsequently granted one day of police remand to the Investigating Officer in T.R. Case No.34 of 2021, a matter arising under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act. Dr. Justice Sanjeeb K Panigrahi, sitting singly, held that the trial court ought to have deferred further coercive steps once the interim protection order of this Court had been brought to its notice, and that the impugned orders could not be sustained in law.

The Dispute Before the High Court

Kartika Lama, also known as Bahadur and Kartik, is an accused in T.R. Case No.34 of 2021, which arose from Jeypore Sadar Police Station Case No.85 of 2021. The prosecution case against him rested on the confessional statement of a co-accused. Following a representation by the petitioner's wife, higher authorities conducted an inquiry and reportedly found no independent material against him beyond that confessional statement.

In an earlier round of litigation, CRLMC No.4802 of 2024, this Court had on 23 December 2024 directed that no coercive action be taken against the petitioner in connection with T.R. Case No.34 of 2021. That order remained in force and had not been vacated.

By early February 2026, the petitioner was already in judicial custody in connection with a separate matter, T.R. Case No.32 of 2025. On 7 February 2026, the Investigating Officer moved the Additional Sessions Judge, Jeypore, seeking production of the petitioner in T.R. Case No.34 of 2021. The trial court, recording prima facie satisfaction about the petitioner's involvement in the NDPS offence, issued a production warrant under Section 267 of the Code of Criminal Procedure for the petitioner's production from Special Jail, Jeypore. When the petitioner's counsel brought the High Court's interim order of 23 December 2024 to the notice of the trial court, the court nonetheless proceeded. On 10 February 2026, upon the petitioner's production, the trial court formally remanded him in T.R. Case No.34 of 2021 and allowed police remand for one day. The petitioner was produced before the court again on 12 February 2026, after expiry of the one-day remand, and was remanded to jail custody.

Aggrieved by the orders of 7 February and 10 February 2026, the petitioner filed CRLMC No.866 of 2026 seeking their quashing.

The Legal Issue

The central question was whether a trial court could lawfully issue a production warrant and grant police remand in a case where the High Court had, by a subsisting interim order, directed that no coercive action be taken against the accused in connection with that very case.

The petitioner's counsel, Mr. Pranaya Kumar Maharaj, argued that the constitutional safeguard protecting personal liberty had been violated, rendering the remand illegal. He contended that the police cannot override a valid stay order of the High Court, and that effecting arrest or remand in defiance of such an order may constitute contempt of court. He invoked the maxim actus curiae neminem gravabit — that an act of the Court shall prejudice no man — relying on the Supreme Court's observations in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602. He also placed reliance on Tusharbhai Rajnikantbhai Shah v. Kamal Dayani and Others, (2025) 1 SCC 753, where it was observed that seeking police custody remand during the currency of interim protection amounted to sheer defiance of the court's order and that the Investigating Officer in such circumstances was guilty of gross contempt.

The petitioner further pointed out that the stay order pertained to T.R. Case No.34 of 2021, the very case in which remand was sought, and that the higher authorities had themselves concluded after inquiry that there was no material against him beyond the co-accused's confessional statement.

The State, represented by Mr. Debasish Nayak, Additional Government Advocate, countered that the trial court had acted within its jurisdiction. It submitted that Section 267(1) of the Cr.P.C. empowers a criminal court to direct production of a person confined in prison for answering a charge or for any proceeding against him. The State argued that when an accused is already in judicial custody in one case, the Investigating Officer in another case must approach the court for a production warrant rather than effecting a fresh arrest, and that this is precisely what was done. It relied on CBI v. Anupam J. Kulkarni, (1992) 3 SCC 141, and Susan Abraham v. State of Maharashtra and Others, 2010 SCC OnLine Bom 98, for the proposition that police custody in a different case is permissible even where the accused is in judicial custody. The State also submitted that the interim order of 23 December 2024 had become infructuous once the petitioner was arrested in T.R. Case No.32 of 2025, and that the production warrant was a lawful court-directed process, not a coercive police action.

How the Court Reasoned

Dr. Justice Panigrahi began by identifying the principal grievance: despite the interim order of 23 December 2024 directing that no coercive action be taken against the petitioner in connection with T.R. Case No.34 of 2021, the trial court had proceeded to issue a production warrant and then grant police remand in that very case.

The Court examined the scope of the expression “no coercive action” in the interim order. It held that this expression was intended to protect the liberty of the petitioner during the pendency of the proceedings before the High Court. The protection was case-specific: it related to T.R. Case No.34 of 2021, the same case in which the production warrant and remand were subsequently ordered.

The Court accepted that the proposition advanced by the State — that police custody in a different case is permissible even where the accused is in judicial custody — is well settled and not in dispute. The decision in Anupam J. Kulkarni was not doubted. However, the Court drew a clear distinction: the peculiar feature of the present case was not merely that the petitioner was in judicial custody in another matter, but that the High Court's interim protection specifically covered T.R. Case No.34 of 2021, the case in which remand was sought.

The Court rejected the State's argument that the production warrant under Section 267 Cr.P.C. was not a coercive action. It held that the impugned orders ultimately resulted in police remand of the petitioner in connection with the present case notwithstanding the subsisting interim protection. The form of the process — production warrant rather than fresh arrest — did not alter the substance: the petitioner was taken into police custody in a case where the High Court had directed that no coercive action be taken.

The Court also addressed the conduct of the trial court. It found that the interim order of 23 December 2024 had been brought to the notice of the trial court before the impugned orders were passed. Once that had happened, the appropriate course was to defer further coercive steps. Instead, the trial court allowed police remand. The Court held that the trial court ought to have exercised due caution in those circumstances.

Outcome

Dr. Justice Sanjeeb K Panigrahi allowed CRLMC No.866 of 2026. The orders dated 7 February 2026 and 10 February 2026 passed by the Additional Sessions Judge-cum-Special Judge, Jeypore, in T.R. Case No.34 of 2021 were quashed. Any earlier interim order passed in the present petition was vacated.