Writ Of Habeas Corpus

                                                                                                   [Issue of Maintainability” & Jurisdiction]

                                                                                                                Writ of Habeous Corpus-

Habeas Corpus :- Habeas corpus is a Latin phrase that translates as " produce the body". It is a writ issued to release a person who has been illegally detained. It is given to a person or authority to bring a person who has been illegally arrested before a judge. It is necessary to determine the reason for the arrest. The validity of detention is determined by the judge, and if there is no proper evidence for detention, the person is released.

A simple dictionary meaning of the writ of Habeas Corpus is "a writ requiring a person under arrest of illegal detention to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention". If a person is detained unlawfully, his relatives or friends or any person can move the Court by filing an application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of Habeas Corpus. This writ direct the person so detained be bought before it to examine the legality of his detention. If the court is satisfied with the contents of the application, this writ would be issued. The court may also award exemplary damages. As in case of Bhim Singh vs State of Jammu & Kashmir the Apex Court awarded the exemplary damages of Rs 50,000 which at that time was very significant amount.

However, there are many cases where the writ of Habeous corpus is not issues, such as-:

1) Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the court.

2) To secure the release of a person who has been imprisoned by a court of law on a criminal charge

3) To interfere with a proceeding for contempt by a court of record or by Parliament.

Thus, this writ of Habeous Corpus is a bulwark of personal liberty. It is said to be ‘a great constitutional privilege’ or ‘ first security civil liberty’.

                                                                                  Issue of maintainability and Jurisdiction of Writ Court-

The writ of habeas corpus is maintainable before High Court if detention is illegal. However it will not be maintainable if the petitioner is in custody as per judicial orders passed by the Court of Competent Jurisdiction. In the recent case of Meghalaya State Legal Services Authority vs State of Meghalaya & Ors, Meghalaya State Legal Services Authority which is a Statutory body under the Legal Services Authority Act, 1987 has filed this under Article 226 of the Constitution in the nature of PIL bringing knowledge of the Court with regard to the Under Trail Prisoners languishing in jail for a considerate period of time without any lawful remand or detention orders. In this case it was seen that, necessary facts and details are lacking and therefore it would not be appropriate to deal with such issues in this writ petition.

In the case of State of Maharashtra & Ors. Vs Tasneem Rizwan Siddiquee, it was stated writ of Habeas Corpus under Article 226 of the Constitution of India shall not be maintainable when a person is in custody on the basis of orders passed by a Court of competent jurisdiction. In the case of Deepesh Mahesh Zaveri vs Union of India & Others, the question of law which arose was whether successive petitions can lie to the High Court under Article 226 seeking to challenge an order of preventive detention after the first petition was dismissed on merits and where no fresh ground or evidence has become available after the decision of the first petition and the ground alleged in the second petition was available to the detenu in first petition. In this case it was decided the limited question about the maintainability of the second writ petition under Article 226 of the Constitution where the detenu has already been released from custody and where no fresh facts are averred nor is any circumstance pointed out which had occurred after the decision of the first petition. Therefore, this is not a fit case for appeal to the Apex Court. Hence prayer rejected. Further in the case of, Dayaro and others vs the State of UP and others, it was decided where the petition under Article 226 is considered on merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution. Further in the case of G. Archana and others vs State of Andhra Pradesh and Others, the High Court of Andhra Pradesh stated that writ of Habeous Corpus is only remedy against the Illegal Detention. The full Bench of the Andhra Pradesh High Court has reiterated the principle that a person in detention under any enactment authorizing preventive detention or is in illegal detention of any private individual has a right to approach the High Court under Article 226 of the Constitution of India in a Habeous Corpus petition.

An aggrieved person may apply for an appeal if the person can prove that the person has been denied or deprived his rights or burdened with legal burden. The main test to decide whether a person is aggrieved is to check whether the order affects his interest prejudicially. Further in a case it was stated that Habeas Corpus Plea proves costly for man. a petitioner filed a habeas corpus petition seeking the production of his employee before the court, the Madurai Bench of the Madras High Court imposed an exemplary cost of ₹5 lakh for the abuse of the court process. In a peculiar case, the petitioner P. Mohamed Sirajudeen of Chennai sought a direction to the Tirunelveli police to produce before the court his employee and her two children. The woman was employed at the petitioner’s Wellness and Nutrition Centre at Chennai. The petitioner claimed that the woman had sought help from him alleging that her husband was not taking care of the family. However, the woman stopped attending work and when questioned she is said to have told the petitioner that she was in Tirunelveli to attend the final rites of her mother-in-law. Moreover, her husband was not allowing her to return to Chennai for work. Subsequently, the petitioner filed the habeas corpus petition before the High Court Bench. A Division Bench of Justices T. Raja and Krishnan Ramasamy, hearing the plea, observed that the habeas corpus petition was a classic example how the court process under Article 226 of the Constitution of India was being abused.

Lastly, if we see chapter XXVIII of Indian Constitution, it contains rules for the issue of writs or orders in the Nature of writs of Habeas Corpus under Article 226 of the Consituion of India. There are seven contents under it – application for writ of Habeas Corpus under Article 226, Rule nisi on prima facie case, order on hearing of rule, service of writs, costs of rule in discretion of court, procedure as to evidence to be recorded, procedure in case of difference of opinion.

                                                                                     Other Judgments & Citations: National Security Act [NSA]

Kamlesh Tiwari Versus Union Of India, HABEAS CORPUS No. - 5369 of 2016, Judgment Dated: 30.09.2016, Bench: Narayan Shukla,J. Hon'ble Anant Kumar , JJ, Allahabad High Court, Lucknow bench [Full PDF Judgment]: NSA- National Security Act

Kindly CLICK HERE or e-mail us at info@hellocounsel.com if you are facing any Legal Issue and want to have Legal Consultations with the empanelled Lawyers at Hello Counsel.