Habeas Corpus
Habeas Corpus
(A/21)
Q. What is Habeas Corpus? Can a Sessions Judge exercise this power within the territorial limits of Sessions Divisions? (S/19)
Q. Discuss the powers of High Court to issue directions of the nature of HABEAS CORPUS? (S/18)
Q. Discuss the powers of High Court to issue directions of the nature of HABEAS CORPUS? (S/17)
Q. Discuss the powers of High Court to issue directions of the nature of HABEAS CORPUS? (S/16)
Q. What are the powers of a HC to issue directions of the nature of Habeas Corpus. (A/16)
Q. Can Sessions Judge exercise this power within the territorial limits of Sessions Divisions. (A/15)
HABEAS CORPUS
1. INTRODUCTION
Everyone has the right to be given equal protection of law (Article 25) and freedom of movement
(Article 15), no one can be arrested arbitrarily (Article 10) and kept in confinement by the Police against
the Constitutional mandate. Section 491, empowers the HC to protect the fundamental rights of the
citizens who are kept under illegal or improper custody.
2. RELEVANT PROVISIONS
Section - 491
3. LEXICAL MEANING
It is a writ requiring a person under arrest or illegal detention to be brought before a judge or into the
court.
A writ employed to bring a person before a court, most frequently to ensure that the party's
imprisonment or detention is not illegal (habeas corpus ad subjiciendum).
The very essence and purpose of the petition for Habeas Corpus under S.491 Cr.P.C, is securing freedom
and not curtailing liberty. It affords an effective means of immediate release from unlawful detention
whether in prison or private custody.
It is not necessary that the detenue himself should apply. Any person having special interest, right or
authority in or from person wrongfully detained may seek relief on his behalf
8. APPLICATION BY STRANGER
No Specific form. Even a letter written by detenu to his counsel complaining of her unlawful detention
was treated as petition by the High Court.
The power of the High Court under Section 491, is a power which the High Court ‘may whenever it
thinks fit’ exercise.
The words signify that the power given by this section is a ‘discretionary’ one.
The High Court may exercise its powers to issue directions of nature of habeas corpus in either of the
following ways.
I. SUO MOTO ECERCISE OF POWERS
High Court may act suo motu if it acquires knowledge that a certain person has been illegally
detained.
II. ON APPLICATION BY DETENUE
The Court may exercise its power to issue directions of the nature of habeas corpus on an
application made by detenue or by some relation of his.
The proceedings under Section 491 are of summary nature. Power of the High Court under the section
are limited and normally High Court does not embark upon an inquiry or investigation with regard
to disputed facts. High Court has no jurisdiction to decide disputed questions of facts in petition by
recording evidence.
The High Court may issue following direction in the nature of habeas corpus.
The direction is issued when the High Court is satisfied that within its jurisdiction a person is
detained illegally or improperly.
A detention is said to be illegal or improper when it is without any legal and factual justification.
(I) When FIR registered before petitioner had moved for Habeas Corpus Petition Under Section 491
(II) Alternate remedy available by which the validity of the detention may be examined.
(III) Petitioner does not come with clean hands
(i) Where a person is detained under any law providing for preventive detention.
(ii) Where the person detained does not come within the limit of its appellate criminal jurisdiction.
(iii) The direction in the nature of habeas corpus is not issued where the effect of it would be to review
the judgment of one of the Superior Courts.
POWERS OF SESSIONS JUDGE
The Sessions Judge and Additional Sessions Judge is empowered under Subsection (1-A) to issue
directions of the nature of Habeas Corpus. The Sessions Judge and the Additional Sessions Judge has the
authority to exercise powers as mentioned under clause (a) and (b)
Under Subsection (1-A) of S.491, Cr.P.C the HC is empowered to direct by general or special order that
a Sessions Judge or a Additional Sessions Judges shall exercise such powers as are mentioned in clause
(a) and (b).
The orders issued by HC under 1-A must be published in the OFFICIAL GAZETTE.
The sole effect of insertion of subsection (1-A) in Section 491 Cr.P.C is that the concurrent jurisdiction
is conferred upon the Sessions Judge
Does not have the effect of taking away jurisdiction from the High Court.
(a) that a person within the limits of its jurisdiction be brought up before the Court to be dealt with
according to law.
(b) that a person illegally or improperly detained in public or private custody within such limits be set
at liberty.
8.