The Allahabad High Court has held that an accused’s non-production before a court at the time of extension of judicial custody would not automatically invalidate the remand order if the authorities are able to demonstrate genuine impossibility in securing his presence.
Emphasizing the doctrine of impossibility, the Court observed that, “Lex non cogit ad impossibilia – the law does not compel the doing of impossibilities,” and further remarked that, “the law does not contemplate an impossibility.”
The Court ruled that where compelling circumstances such as a grave law-and-order situation and technical failure in video conferencing prevent the production of an accused, the remand order would not stand vitiated merely on that ground.
The order was passed by the Single Bench of Justice Vikram D. Chauhan while dismissing a petition filed by Dr. Ashish Shakya under Article 227 of the Constitution challenging the legality of his judicial remand extension order dated April 16, 2026.
The respondents in the matter were the Central Bureau of Investigation and the State authorities.
According to the case record, the petitioner was arrested on March 15, 2026, from Felix Hospital, Sector-137, Noida, in connection with an FIR registered by the CBI.
The FIR, bearing RC2182026A0005, was lodged at Police Station CBI, AC-III, New Delhi under Section 61(2) of the Bharatiya Nyaya Sanhita, 2023 read with Sections 7, 8, 9, 10 and 12 of the Prevention of Corruption Act, 1988.
After his arrest, the petitioner was initially sent to police custody and thereafter to judicial custody, which was periodically extended.
The controversy before the High Court centered on the remand order dated April 16, 2026, by which the Special Judge, Anti-Corruption, CBI, Ghaziabad, extended the petitioner’s judicial custody till April 30, 2026, despite the accused not being produced either physically or through video conferencing.
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Counsel for the petitioner argued that Section 187(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, made the accused’s production mandatory at the time of extension of judicial custody.
The defence argued that the Supreme Court in Jigar Alias Jimmy Pravinchandra Adatiya vs. State of Gujarat, (2023) 6 SCC 484 had unequivocally held that the accused must be produced before the court while extending judicial custody so as to enable him to oppose the remand.
According to the petitioner, any breach of this procedural mandate rendered the remand order unlawful.
The High Court, however, was persuaded by the explanation of the CBI and the State that unprecedented law-and-order disturbances caused by factory workers’ protests in Gautam Buddh Nagar had disrupted normal escort arrangements and prevented the authorities from producing the accused before the court.
A substantial police force had been diverted for emergency deployment and escort duties, making it impossible to physically produce prisoners before courts.
The Court also noted that attempts were made to secure the petitioner’s appearance through video conferencing, but the connection failed because of technical glitches.
While analysing the constitutional safeguards under Articles 21 and 22, the Court reiterated that the object of requiring production before a Magistrate is to prevent arbitrary detention and to enable the accused to oppose remand or seek bail.
At the same time, the Court observed that legislation cannot foresee every contingency and that rigid procedural compliance may sometimes become impossible.
Referring extensively to precedents including Raj Narain vs. Superintendent, Central Jail, New Delhi; Gouri Shankar Jha vs. The State of Bihar and Ors., AIR 1972 SC 711 and other decisions, the Court held that the principle of impossibility operates as a recognised exception in law.
Importantly, the Court noted that the petitioner’s counsel was present before the trial court on April 16, 2026 and had opposed the extension of remand.
Therefore, no actual prejudice was shown to have been caused to the accused. The Court further observed that no right to default bail had accrued at that stage since the statutory period under Section 187(3) BNSS had not expired.
The Bench also cautioned that remand order should never be passed mechanically and emphasized that courts must ordinarily insist on the production of accused persons either physically or through audio-video means.
However, where exceptional and uncontrollable circumstances genuinely prevent such production, the remand order would not automatically become illegal.
Holding that the circumstances in the instant case squarely attracted the doctrine of impossibility, the Court concluded that the non-availability of police escort coupled with the failure of video conferencing facilities constituted sufficient justification for the accused’s absence.
Consequently, the High Court found no illegality in the remand order and dismissed the instant writ petition.
Case: Dr. Ashish Shakya vs Central Bureau of Investigation and another
Case No: Matters Under Article 227 No. – 5746 of 2026
Date of Order: 22.05.2026
Status: Dismissed
