TITLE OF RESEARCH PAPER

WRIT OF HABEAS CORPUS

By

ALLU. SAI SARAYU

2018007

Semester VII

Name of the Program: 5 years (B.A.,LL.B./LL.M.)

Subject

Drafting Pleading and Conveyance

Name of the Faculty Member

Prof.(Dr.) Ghanta Satyanarayana

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY NYAYAPRASTHA,

SABBAVARAM, VISAKHAPATNAM - 531035 ANDHRA PRADESH, INDIA

Date of Submission: 31-12-2021

ACKNOWLEDGEMENT

It is deemed appropriate to thank everyone who facilitated in the completion of this research
project. Firstly, we would like to thank Prof. Dr. S. Surya Prakash, Vice Chancellor of
Damodaram Sanjivayya National Law University for providing us this opportunity to research in
this field of law and providing the pre-requisite infrastructure necessary for such an endeavor. I
would also like to provide our deepest gratitude to our Professor, Prof.(Dr.) Ghanta
Satyanarayana Sir , Damodaram Sanjivayya National Law University for her continuous support
and guidance which was essential to the completion of this project even during the lockdown.
And lastly I would like thank my friends and parents who assisted me in completing this paper.
SYNOPSIS

INTRODUCTION

Constitution of India is the supreme law of the land which lays down rules and regulations for
the protection of the rights of the people and imposed duties over them. This vast literature is
considered as the guardian and protector of the fundamental rights guaranteed to an individual.
The right of WRITS is one such right available to a person. The provisions of the Indian
constitution are sanctioned by law thus the judiciary has the independent authority over the
matters in which writs are to be issued. The concept of the writs is to enable the immediate
determination of the rights of an individual and help the person to achieve the benefit of his right.

 Writ of habeas corpus

Habeas corpus is the Latin term which means ‘you must have the body’. It is the order issued by
the court to present the detenu before the court and to check whether the arrest was lawful or not.

RESEARCH QUESTION:
1. WHTHER WRIT OF HABEAS CORPUS PLAY IMPORTANT ROLE IN INDIAN
CONSTITUTION?
2. WHAT IS THE MEANING OF HABEAS CORPUS?
3. HOW DOES HABEAS CORPUS WORKS?
4. WHEN THE HEBEAS CORPUS PETITION CAB BE CONSIDERED?
5. WHETHER THE DOCTRINE OF RES JUDICATA APPLIES TO THIS WRIT?

OBJECTIVE OF THE STUDY

From this Research we can clear understand WRIT OF HABEAS CORPUS in detail, when will
it apply, In what cases it is used, its limitation, its importance, everything will discussed clear. A
sample draft is also added for understanding. One can get a clear picture of Habeas Corpus from
this research and this is the main objective of the paper.

RESEARCH METHODOLOGY

“Doctrinal research includes :-

1. Descriptive study

2. Explanatory study

3. Analytical study

4. Comparative study

INTRODUCTION
Constitution of India is the supreme law of the land which lays down rules and regulations for
the protection of the rights of the people and imposed duties over them. This vast literature is
considered as the guardian and protector of the fundamental rights guaranteed to an individual.
The right of WRITS is one such right available to a person. The provisions of the Indian
constitution are sanctioned by law thus the judiciary has the independent authority over the
matters in which writs are to be issued. The concept of the writs is to enable the immediate
determination of the rights of an individual and help the person to achieve the benefit of his right.

There are five types of writs in our constitution those are as follows:

 Writ of habeas corpus

Habeas corpus is the Latin term which means ‘you must have the body’. It is the order issued by
the court to present the detenu before the court and to check whether the arrest was lawful or not.

 Writ of Mandamus
The writ of mandamus is the order or command issued by any statute or any authority sanctioned
by law to any person, corporation or any other authority in order to perform any public duty.

 Writ of prohibition
The writ of prohibition means is a writ issued by the higher authority to its subordinate authority
in order to stop something which the law prohibits. This writ can only be issued against a judicial
and quasi-judicial body.

 Writ of certiorari
The term certiorari is a Latin word which means to be informed. This writ is issued by the higher
court to review the actions of the lower court.

 Writ of quo warranto

Writ of quo warranto means by what authority. This writ is issued which requires a person to
show by what authority he has exercised his powers or rights.

The supreme court under Article 32 and the high court under Article 226 have the power to
issue writs of these nature. Though under Article 32 the supreme courts issue the writs if there is
any violation of the fundamental rights of a person but the High Court under Article 226 has a
wider jurisdiction to issue the writ for both a violation of the legal as well as the fundamental
rights.

Meaning of the writ of habeas corpus

The writ of habeas corpus is the legal procedure which acts as a remedial measure for the person
who is illegally detained. The term habeas corpus is the Latin word which means to bring or
present the body before the court. It is the most important right available to the person detained
unlawfully. The basic purpose for which this writ is used is to release a person from unlawful
detention or imprisonment. This writ is of great importance as it determines a person his right to
freedom and personal liberty.

Illustration

A has been taken into custody by B a police officer without a warrant. All the efforts made by
A’s family to know the whereabouts of A turned out to be futile. As he was detained wrongfully
by B (police officer), the writ of habeas corpus can be filed in court by A’s family on his behalf.

If the cause given reveals that the detained person has been detained illegally, the Court will
order his release. Thus, the primary goal of the writ is to provide an instant remedy to a person
who has been wrongfully held by the person, whether in prison or private custody.

In Kanu Sanyal vs. District Magistrate, Darjeeling, the Supreme Court ruled that when
dealing with an application for writ of habeas corpus, the body of the person alleged to be
unlawfully incarcerated was not required. In that instance, Kanu Sanyal, a top-ranking Naxalite
leader, was caught in 1971 and imprisoned without charge in the Vishakhapatnam Jail. 

He approached the Supreme Court for a writ under Article 32, disputing the validity of his
incarceration and requesting that the Court issue an order requiring his appearance in court. The
Court ordered the rule nisi but did not order the detenue to be produced. Justice Bhagwati ruled
that in a writ of habeas corpus under article 32, the body of the person detained before the court
was not required for the court to hear and decide the writ petition.

Nature of the writ of habeas corpus

The concept of habeas corpus can be traced way back in the thirteenth century. The writ
of Habeas corpus cum causa is an order calling upon the person who has detained another
person, to present the person in the court and justify his actions that on what grounds and under
what authority he has confined that person. If the court doesn’t find any legal justifications for
the cause, then it will order for the immediate release of the person confined or imprisoned.

Origin of Habeas Corpus

The origin of Habeas Corpus can be traced back to 1215 AD when King John signed the
landmark document of Magna Carta.
 • The 39th clause of this historical document stated, “No man shall be arrested or
imprisoned...except by the lawful judgment of his peers and by the law of the land”.

• The concept of Habeas Corpus is embedded in legal systems all over the world, for instance, in
the United States, through the First Judiciary Act of 1789, Congress explicitly authorized the
federal courts to grant habeas corpus relief to federal prisoners.

Writ of Habeas Corpus: How it Works

A writ of habeas corpus (which literally means to "produce the body") is a court order
demanding that a public official (such as a warden) deliver an imprisoned individual to the court
and show a valid reason for that person's detention. The procedure provides a means for prison
inmates, or others acting on their behalf, to dispute the legal basis for confinement. Habeas
corpus has deep roots in English common law.

Often, the court holds a hearing on the matter, during which the inmate and the government can
both present evidence about whether there is a lawful basis for jailing the person. The court may
also issue and enforce subpoenas in order to obtain additional evidence.

Depending on what the evidence reveals, the judge may grant the inmate relief such as:

 Release from prison,

 Reduction in the sentence,
 An order halting illegal conditions of confinement, or
 A declaration of rights.

It's important not to confuse habeas corpus with the right of direct appeal. Criminal defendants
are always entitled to appeal a conviction or sentence to a higher court, which then reviews the
trial judge's rulings. Habeas corpus provides a separate avenue for challenging imprisonment,
and is normally used after a direct appeal has failed. It often serves as a last resort for inmates
who insist that a miscarriage of justice has occurred.

Who may apply for the writ of habeas corpus

To answer this question the courts have made this clear in various cases that the person who may
apply for the writ of habeas corpus should be

 The person confined or detained illegally.

 The person who is aware of the benefit of the case.
  The person who is familiar with the facts and circumstances of the case and willingly
files an application of the writ of habeas corpus under article 32 and 226 of the Indian
constitution.

An application can be made by someone who is illegally held, according to the general norm.
However, in some circumstances, any anyone may file a habeas corpus petition on behalf of a
prisoner. The individual could be anyone, such as a friend or relative.

Features

• The writ of habeas corpus primarily acts as a writ of enquiry; it is issued by the courts to
ascertain the grounds of detention of an individual. Therefore, it acts as a procedural safeguard
against the law enforcement authorities, specifically their power to take into custody.

• Moreover, if sufficient legal grounds of arrest are missing, the court will order the immediate
release of the individual.

• As a fundamental instrument for safeguarding an individual’s freedom against arbitrary and

lawless state action, the writ of habeas corpus serves as a procedural device, by which executive,
judicial, or other governmental restraints on personal liberty are subjected to judicial scrutiny.

• The Writ of Habeas Corpus is a remedy available to the person who has lost his personal
liberty and as such, it cannot be invoked to challenge past illegal detentions.

• However, the Supreme Court has expanded the dimension of this writ and now the Court
awards compensation not only for past illegal detentions but also for loss of life as was done in
the case of Rudul Shah v. State of Bihar.

Personal liberty is such an inviolable right that judicial pronouncements have relaxed the rule of
Locus Standi and as a general rule, the petition will be filed by the person illegally detained, but
in certain cases, a friend or any other person can approach the Court on behalf of the detainee.
One reason that the strict adherence to the rule of locus standi is not applied is that the detainee
may be incommunicado. The landmark judgement in this regard is Sunil Batra vs Delhi
Administration. The Supreme Court broadened the scope of Habeas Corpus by making it
available to detainee, but also for safeguarding constitutional rights of fellow prisoners. For other
landmark Supreme Court judgements, click on the linked article.

The writ of habeas corpus can be availed in the following cases:

• For the enforcement of fundamental rights; the right to personal liberty is a fundamental right
by virtue of Article 21. Hence if the executive arrests or detains a person without the authority of
law or in contravention of the procedure established by law, the High Court or the Supreme
Court will order the release of the individual from detention by virtue of a writ of Habeas
Corpus. • The writ can also be issued where the imprisonment or detention is ultra vires to the
statute that authorises such arrest or detention. This principle has been invoked and implemented
in the case of Keshav v. Commissioner of Police. The writ of Habeas corpus cannot however be
invoked and implemented in the following cases:

• Where the person against whom the writ is issued or the person who is detained is not within
the jurisdiction of the Court.

• In Janardhan v. State, the apex court also stated that the writ does not lie to secure the release
of a person who has been imprisoned by a court of law on a criminal charge.

• This writ cannot also be issued to interfere with a proceeding of contempt by a court of record
or by the Parliament.

When Article 21 was suspended, it was held in Addl. District Magistrate, Jabalpur v. Shukla, that
an order of preventive detention could not be challenged even if it violated the parent Act (i.e,
the Act relating to preventive detention). The 44th Amendment, 1978, has provided that Article
21, relating to personal liberty cannot be suspended even during an emergency. In this way,
personal liberty has been strengthened and the writ of habeas corpus retains its potency even
during an emergency. The writ of Habeas Corpus is a check on the governmental powers to
curtail the liberty of a person; its fundamental purpose is to ensure the swift review of illegal
detentions. The scope and extent of this writ were explained by the Supreme Court in State of
Maharashtra v. Bhaurao Punjabrao Gawande.

The Court stated that the writ of habeas corpus has been described as a great constitutional
privilege or the first security of civil liberty as it provides a prompt and effective remedy against
illegal detention. By the use of this writ, the Court directs the authority which has detained a
person to produce the body of the person before the Court so that it can enable the validity,
jurisdiction or justification of the arrest or detention. One of the key aspects of the writ of habeas
corpus is the urgency that is attached to its disposal, it is in this context that the attitude of both
the High Court of Jammu and Kashmir and the Supreme Court has been worrisome, to say the
least. After the abrogation of Article 370 on 5th August 2019, a bunch of habeas corpus petitions
were filed in the two above stated forums, but the Courts have been deferring these matters time
and again leaving the petitioners in a limbo.

Rules to file Habeas Corpus writ petition:

The Supreme Court does in the application of writ of habeas corpus does not follow a strict rule
of pleading nor place undue emphasis as to question as to on whom the burden of proof lies.
Even a postcard written by a detenue from jail would be sufficient to activate the Court into
examining the legality of detention. 

The Supreme Court has historically demonstrated tremendous concern for personal liberty,
refusing to dismiss a petition just because it lacks a prima facie case. This practice marks a
departure from that that obtaining in England where observance of the strict rules of pleading
conditions prevailing in this country the Court has adopted a liberal approach. 

The burden of proof to justify that the detention is legal has always been placed on the authority
detaining the person.

Technicalities and Legal Necessities:

Technicalities and legal necessities are no impediments to the court entertaining even an
informal communication as a proceeding for habeas corpus if the basic facts are found. 

The writ of habeas corpus will not only be used to release an unjustly detained person, but it will
also be used to protect him against treatment inside cells. After Batra’s Case, the dynamic role of
judicial remedies imparts to the habeas corpus writ a versatile vitality and operational use that
makes the healing presence of the law live up to its reputation as a bastion of liberty even within
jails declared, said Justice Krishna Iyer.       

The plea of absence of independent consideration was not raised in the petition nor urged before
the High Court. It was not even raised in the appeal to the Supreme Court. The Supreme Court
allowed the counsel to canvass this point and held that ordinarily, it would have not allowed
raising any point in the Court which was not urged before the High Court but the habeas
corpus petition could not be dismissed on the ground of imperfect pleading.

When the habeas corpus petition can be considered?

The writ of habeas corpus will be considered if the power of detention vested in authority was
exercised mala fide and is made in collateral or ulterior purposes. But if the detention is justified
the High Court will not grant the writ of habeas corpus. 

Conditions to prove that detention is illegal:

a)   If the detention is not made in accordance with the procedure established by law.
b)  The detention violates conditions mentioned under Article 22.

c) If the person who is arrested is not produced before the Magistrate within 24hrs of his arrest.

If any of the conditions are satisfied, then the detention/arrest will be illegal and the arrested
person will be entitled to be released on a writ of Habeas Corpus.

When the writ of habeas corpus is refused

The following conditions when the writ of habeas corpus is refused are as follows:

 When the court doesn’t have the territorial jurisdiction over the detainer.
 When the detention of a person is connected with the order of the court.
 When the person detained is already set free.
 When the confinement has been legitimized by the removal of the defects.
 The writ of habeas corpus will not be available during an emergency.
 When the competent court dismisses the petition on the grounds of merits.

Limitations of Habeas Corpus

A writ of habeas corpus is not available in every situation. Because judges receive a flood of
habeas corpus petitions each year, including some that inmates prepare without the assistance of
a lawyer, strict procedures govern which ones are allowed to proceed. Inmates are generally
barred from repetitively filing petitions about the same matter.

Both state and federal courts can hear habeas corpus petitions. Federal courts sometimes decide
that a state conviction was unjust and order the person's release. However, Congress has imposed
restrictions on federal courts' authority to overrule state courts in this manner.

When an inmate is not challenging the fact of being in jail but rather the conditions of
confinement -- for instance, claiming severe mistreatment or unlawful prison policies -- it is
usually necessary to file a civil rights complaint instead of a habeas corpus petition. Under
the Prison Litigation Reform Act, inmates contesting conditions generally must first attempt to
resolve the matter through available grievance procedures, so that correctional officials have an
opportunity to remedy problems before litigation.

Different dimensions of the writ of Habeas Corpus

Few important aspects relating to this writ of habeas corpus are:

 Nature of Proceedings:Regarding the question of whether habeas corpus proceedings are civil or
criminal in nature, it was held by the court of law in Narayan v. Ishwarlal 1 that it would depend
on the nature of the proceedings in which the jurisdiction has been implemented.

Who may apply:Regarding the question of who may apply for the writ it has been stated by the
rule of law that not only the prisoner or the detained, but any other person who know that merits
of the case, acquainted with the facts and circumstances and has recognized interest in moving of
such application in front of the court can apply under Art. 32 and Art. 226 of the Constitution.

 Conditions of refusal: There may be conditions under which the habeas corpus may be
refused which are as follows:

i) when the person or authority i.e. detainer does not come under the territorial jurisdiction of the
court,

ii) when theimprisonment is in nexus with the order or decision rendered by the court,

iii)when the detenu has already been set free,

iv) when the detention has been validated by removal of defects,

v) when the writ is sought during emergency situations,

vi) when the petition has been dismissed by a competent court by looking into the merits.

 Alternative remedy: Habeas corpus being a writ of course or right may be refused if
there is no cause shown. It, however, cannot be refused on the ground that an alternative
remedy is available to the applicant2.
 Improper pleading:The question regarding whether the writ petition can be set aside if
the pleading made is improper has been made clear by the court of law in Ranjit Singh v
State of Pepsu3 by stating that “the whole object of proceedings for a writ of Habeas
Corpus is to make them expeditious, to keep them as free from technicality as possible
and to keep them as simple as possible”.
 Burden of proof:In regard to the question pertaining to upon whom the burden of proof
lies, it was stated that it is the responsibility of the authority which is questioned for
unlawfully detaining a person to prove that the grounds were satisfactory enough to
arrest and confine a person behind the bars. But if it is alleged by the detenu (viz. the

1
Narayan v. Ishwarlal AIR 1965 SC 1818: (1966) 1 SCR 190
2
R. v. Pell, (1674) 3 Keb 279: 84 ER 720
3
Ranjit Singh v. State of Pepsu AIR 1959 SC 843, 845-46: 1959 Supp (2) SCR 727
 person detained) that the order of detention is mala fide, the burden of proof is on the
detenu and he has to establish it4.
 New pleadings: The question regarding whether or not a new plea can be raised during
the hearing of the writ petition, it has been stated that no fresh issue can be evoked
during the pleadings of writs but Habeas Corpus is an exception to this. But no such plea
can be allowed if the respondent has no opportunity to rebut or controvert the plea and it
may result in prejudice to the other side5.
 Territorial jurisdiction:Regarding the territorial jurisdiction, Supreme Court‟ s
jurisdiction under article 32 extends over all the authorities; be it inside the territory of
India or outside it, provided they must be under the control of the Government. Whereas
in case of High Courts‟ jurisdiction by article 226, it applies to all the authorities lying
within the control of that high court or where the cause of action arises.

Whether the doctrine of res judicata applies to this writ

When it comes to the illegal confinement of a person, the doctrine of res judicata is not
applicable. Under article 32 successive petition for the writ of habeas corpus can be filed in the
court with fresh grounds which were not covered in the earlier petition filed for the same. The
petition for habeas corpus is maintainable if it is filed in the forum having its independent
existence and separate jurisdiction and competency.

In Lallubhai Jogibhai Patel vs Union Of India & Ors on 15 December, 1980 it was held that no
second petition for the writ of habeas corpus is maintainable in the court if filed on the same
grounds as of the first one.

Preventive detention
Preventive detention is the confinement or imprisonment of a person in order to prevent him
from committing any kind of offence in the future. It does not act as a punishment or penalty
imposed upon a person, it’s just a precautionary method. The concept of preventive detention
and habeas corpus comes hand in hand. Article 22 of the Indian constitution states the procedure
of preventive detention and requires a strict adherence of law. Parliament is authorized to make
laws for preventive detention for various reasons connected with it like:

 Defence.
 Foreign relations or foreign affairs of the country.

4
Ram Singh v. State of Delhi, AIR 1951 SC 270: 1951 SCR 270: 1951 SCR 451
5
Arun Kumar v. State of W.B., (1972) 3 SCC 893
  With the very purpose of providing security to India and its state.
 For the maintenance of public order.
However, such detention may be monitored through judicial review by checking its
preconditions.

Alternative remedy
If the defendant gives lawful justification for the detention or confinement the writ of habeas
corpus may not be issued by the court. However, in case of an alternative remedy, the applicant
still has the right of issuing the writ of habeas corpus. It is not refused on the grounds of
availability of the alternative remedy to the applicant.

Burden of proof
The burden of proof lies over the person or the authority to satisfy the court that the detention or
confinement of the person was made on legal grounds. And if the detenu alleges that the
confinement was malicious and outside the jurisdiction of the authority detaining the person than
the burden of proof lies over the detenu.

Territorial jurisdiction
Under Article 32 of the Indian constitution, the supreme court has jurisdiction over all the
authorities within and outside the territorial jurisdiction of India. Under Article  226 the high
court is empowered to deal with the matter when the high court is having control over that
authority and the probable cause of action arises.

Writ of habeas corpus during an emergency proclamation

The writ of habeas corpus is maintainable during an emergency proclamation, as after the 44th
amendment in 1978 it was stated that fundamental rights enshrined under article 20 and 21
cannot be suspended. And for the enforcement of these rights, the writ petition can be filed in
court.

Landmark Judgments of Habeas Corpus

Now let us have a look over few landmark judgments for clear understanding of this writ of
habeas corpus.

Additional District Magistrate of Jabalpur V. Shiv Kant Shukla 1976 SC 1207: This case is
commonly known as the habeas corpus case as it was based upon the issuance and validity
aspects of this writ. This case was the reason behind the 44th Constitutional AmendmentAct,
1978 and also the major decision that Article 21 can be suspended during emergency. It basically
revolves around the emergency which was imposed during the period 1975-77 on the direction of
Smt. Indira Gandhi for the fulfillment of her own political benefits. According to article 21 of
our constitution, every person is entitled to life and liberty which also covers the right to move to
court. But according to Article 359, this right was curbed during this emergency situation whose
reason was declared as threat to security of nation by the way of internal disturbances. The whole
case revolved around the basic question of whether habeas corpus can be granted in such a
situation or even that right would be taken away subsequently. The arguments given from the
side of state were that situations of emergency are declared for social, economic and military
security of the nation thus in such situations, the state is given the zenith power. Nevertheless,
when the state can suspend the fundamental rights of article 14 and 21, then no question arises
regarding whether a person can come with a writ petition of habeas corpus regarding these
fundamental rights.The major argument from the opposite party was that except the detention
talked about in Section 3 of MISA (Maintenance of InternalSecurity Act), every other detention
without any special condition fulfillment will be considered as ultra vires of the court. Major
questioning was upon the content and essence of the presidential order and also the locus standi
of the writ of habeas corpus. The decision of the Supreme Court had its base upon the case of
Liversidge v. Anderson wherein all the rights were held as suspended during the emergency and
same was held in this case that even the right to life can be curbed by the state while emergency
is imposed. The decision was highly criticized and this day became the black day of Indian legal
history.

Sheela Barse v. State of Maharashtra 1983 SCC 96: In this case, the plaintiff who was a
journalist and an activist for prisoners‟ rights wrote a letter to the Supreme Court stating that
women prisoners were assaulted in the lock up, following which a writ petition was filed by the
court and an investigative authority was sent to crosscheck the allegations made which were
found true subsequently. Thus, in this case it was held that if the detained person can‟t file the
writ petition, someone else can file it on his behalf quashing the traditional approach of locus
standi.

Sunil Batra v. Delhi Administration 1980 AIR 1579: This case predominantly focused upon
the legally enforceable rights of the prisoners and legal sanction against their maltreatment
during the detention. It was held by the court of law that writ of habeas corpus can not only be
used for against the illegal detention of the prisoner but also for his protection against any
maltreatment or inhuman behavior by the detaining authorities behind the bars. Thus this writ
can be used not only against the existence of the illegal detention but also checks the manner in
which the detention was subjected.
 Kanu Sanyal v. District Magistrate Darjeeling & Ors. 1974 AIR 510: This case dealt with
the nature and scope of the writ of habeas corpus where it was stated that it is a procedural writ
and not a substantive writ. It was also held in this case that rather than focusing upon the defined
meaning of Habeas Corpus i.e. produce the body, there must be a straightforward focus upon the
examination of the legality of the detention by looking at the facts and circumstances of the case
and hence, this case talked about the real scope and meaning of the writ of habeas corpus.

A.K. Gopalan v. The State of Madras

In the instant case, the preventive detention act was examined based on its constitutional validity.
If a legislature restraints a person from his personal liberty should be competent enough to make
such law in the first place. Detention is turned out to be unlawful if the law backing it up is
unlawful. A person has the right to approach the court. A person can file an appeal in the
supreme court against the order of high court in case of accepting or refusing the application for
the writ of habeas corpus.

How to file a habeas corpus writ petition:

The writ of habeas corpus can be filed in the High Court (Article 226) or Supreme Court (Article
32).  Upon filing a habeas corpus writ petition the Court calls upon the detained person before it
to examine whether he has been illegally detained. After examining if the court thinks that the
person has been illegally detained or arrested, the Court can order to release the person under the
Habeas Corpus writ petition.

Sample Draft of Habeas Corpus Petitions

This is the only body of the Writ Petition. Please include other details also, as per the
requirement of concerned High Court and Supreme Court Rules:

IN THE HIGH COURT OF BOMBAY

CRIMINAL ORIGINAL JURISDICTION 

WRIT PETITION (CRIMINAL) NO. OF 2020

(UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA)

IN THE MATTER OF:

______ S/O ___________

AGED ABOUT ____ YEARS

RESIDENT OF __________

THROUGH ____ S/O ___, AGED

 _____

YEAR AS NEXT FRIEND                                                        PETITIONER

VERSUS

1. STATE GOVERNMENT

HOME DEPARTMENT

BOMBAY                                                                           RESPONDENT NO. 1

2. DISTRICT MAGISTRATE 

______________

MUMBAI                                                                    RESPONDENT NO. 2

3. SUPERINTENDENT

YERWADA JAIL

BOMBAY                                                                    RESPONDENT NO. 3

WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING

INTER ALIA FOR ISSUING WRIT OF HABEAS CORPUS TO RESPONDENT NO. 1, 2
AND 3 THEREBY QUASHING THE IMPUGNED ORDER AND DIRECTING THE
RELEASE OF THE PETITIONER AND GRANTING REASONABLE COMPENSATION TO
THE PETITIONER

To,
The Hon’ble Chief Justice of High Court,

And His Companion Judges of the

Hon’ble High Court of Bombay.

The humble petition of the

Petitioner above named.

1. That the Petitioner is filing the present writ petition under article 226 of the constitution of
India praying inter alia for issuing writ of habeas corpus to respondent no. 1, 2 and 3 thereby
quashing the impugned order and directing the release of the petitioner and granting reasonable
compensation to the petitioner.

2. That the petitioner resides in _________ and has been a law abiding citizen of India.

3. That on ___day of____, the Petitioner was arrested and detained for a period of 2 months in
the Tihar Jail, New Delhi, wherein the Respondent No. 3 is the Superintendent, with an order
passed by the Respondent No.1 dated ___under the National Security Act, 1980. A copy of the
order by the Respondent No. 1 has been annexed herewith as Annexure 1.

4. That, on the date of getting detained and arrested in the Tihar Jail. The Petitioner was not
informed about the grounds of his detention by Respondent No. 3.

5. That after Ten days of getting arrested and detained, the Petitioner was informed of his ground
of arrest and detention.

6. The report of the ground of detention was furnished to the Petitioner in English, which is not
understood by the Petitioner.

7. The Petitioner’s father is interested in the release of the Petitioner from the detention.

8. That the Petitioners have no other efficacious remedy except to approach this Hon’ble Court
by way of this Petition under Article 226 of the Constitution of India.

9. That the Petitioners have not filed any other petition or preceding in any court or tribunal
throughout the territory of India regarding the matter.
10. Therefore, the order by Respondent No. 1 dated______, is illegal, arbitrary and with lack of
jurisdiction because of the following grounds given below:-

GROUNDS

That the present Writ Petition is being filed on the following, amongst other, grounds without
prejudice to each other;

a. Because the grounds of detention were furnished to the Petitioner after prolonged delay.

b. Because the Petitioner’s detention is violative of Article 21 of the Indian Constitution.

c. Because the grounds of detention of the Petitioner was given in English, which is not
comprehensible for the Petitioner.

d. Because he grounds of detention is very arbitrary and vague.

PRAYERS

In view of the facts & circumstances stated above, it is most respectfully prayed that this Hon’ble
Court may be pleased to:-

a) Issue a Writ of Habeas Corpus to the Respondent 1 to 3 thereby quashing the impugned order;

b) Issue an appropriate Writ Directing release of the Petitioner;

c) Issue appropriate Writ granting reasonable compensation to the Petitioner;

d) Any other relief, order or direction this court may deem fit and proper under the facts and
circumstances of this case.

AND FOR THIS ACT OF KINDNESS THE APPLICANT AS IN DUTY BOUND SHALL
EVER PRAY.

FILED BY:

(________________)

ADVOCATE FOR THE PETITIONER

DRAWN ON:

Drawn by:

New Delhi

Date:

OTHER INFORMATION, DOCUMENTS TO BE INCLUDED WITH WRIT PETITION

1. Notice of motion

2. Urgent application

3. Court fee

4. Certificate

5. Synopsis & list of dates

6. Memo of parties

7. Annexure to the Petition

8. Application for exemption from filing certified copies, dim and small font annexures with
affidavit.

9. Vakalatnama on behalf of the petitioner.

IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY CRIMINAL WRIT JURISDICTION)

 Writ Petition (Criminal) No ..128. ... ... /2018

IN THE MATTER OF :

1. Smt. Sushma Mishra,

W/o Sh. Santosh Mishra,

Both R/o C-1/55, Sharma Colony,

Budh Vihar Phase 2,

Delhi-110086

…………… PETITIONERS

VERSUS

1. Additional Secretary, Ministry of Finance, 

Government of India

2. The Superintendent, Tihar Jail

3. The State of Delhi NCT

…………..RESPONDENTS

A WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF INDIA FOR

ISSUANCE OF WRIT OF HABEAUS CORPUS UNDER THE CONSTITUTION OF
INDIA.

To.

The Hon’ble Chief Justice and

His Companion Justices of the High Court of Delhi,

At New Delhi.

THE PETITIONER ABOVENAMED MOST RESPECTFULLY SHOWETH:

1.That the petitioner is a resident Of C-1/55, Sharma Colony, Budh Vihar Phase 2, Delhi-
110086 and he was living peacefully at his residence at the place aforesaid. 

2. That on 2/1/18 Respondent No. 1 made an order under Section 3 of the Conservation of
Foreign Exchange and Prevention of Smuggling Activities Act, 1974 by which he directed that
the Petitioner shall be arrested and detained for a period of three months. A copy of the order is
annexed herewith as Annexure 1.

3. That the Petitioner was arrested the same day and was detained in Tihar Jail. The grounds of
detention were not supplied to the petitioner on that day. The grounds were actually supplied on
2/3/18. A copy of the grounds supplied is annexed herewith as Annexure 2.

4. That on 10/3/18 the Petitioner submitted a representation against his detention through
Respondent No. 2 but the same was considered by the Advisory Board after one month and was
rejected on 10/4/18.

5. That the grounds of detention supplied to the Petitioner were in English which language the
Petitioner does not know. 

6. That the orders of detention of the Petitioner are illegal, improper and without jurisdiction on
the following: 

GROUNDS:-

1. Because the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974, is unconstitutional and void as it is beyond the legislative competence of Parliament. 

2. Because the order has been passed by an officer not duly authorised. 

3. Because the grounds were supplied after undue delay. 

4. Because the grounds are in English which language the Petitioner does not know and this has
prevented him from making an effective representation. 

5. Because the grounds are irrelevant to the object of the Act. 

6. Because the grounds are vague. 

7. Because there was undue delay in the disposal of the representation submitted by the
petitioner. 
Wherefore it is respectfully prayed that this Hon 鍛 le Court may be pleased to issue a writ in the
nature of Habeas Corpus to the opposite parties quashing the order of detention and directing that
the Petitioner be set at liberty forthwith. 

PRAYER

The petitioner most humbly prays that this Hon’ble Court may graciously be pleased to:-
a) Issue a writ of habeas Corpus or other suitable writ under Article 226 of the
Constitution of India.
b) Issue any other further order(s) or direction as this Hon’ble Court deem fit and
appropriate on the facts and in the circumstances of this case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER, AS IN DUTY BOUND SHALL
EVER PRAY.

Delhi.

Dated: 20th April 2018

Petitioners

Through

Dimple Gyamlani

ADVOCATE

VERIFICATION

It is verified at New Delhi this day of October, 2018 that paras 1 to 3 of above writ
petition under Article 226/227 of Constitution of India are true and correct to his knowledge and
paras 4 to 6 are true to petitioner’s information received and believed to be true by him. Last para
is prayer to this Hon’ble Court and nothing has been concealed therefrom.

PETITIONERS
Conclusion
It can be concluded that the right of WRITS is one such right available to a person. The
provisions of the Indian constitution are sanctioned by law thus the judiciary has the independent
authority over the matters in which writs are to be issued. The concept of the writs is to enable
the immediate determination of the rights of an individual and help the person to achieve the
benefit of his right.

The writ of habeas corpus is the most important writ available to a person as it enables him to
determine the right to his liberty. It acts as a remedial measure which ensures to set free the
detained person from the illegal imprisonment. However, it doesn’t absolve any person from his
liability. It demands lawful justification for the detention and protects the person from any kind
of ill-treatment and discrimination from the authority which detained the person. In this manner,
the judiciary is using this writ in such an effective manner in order to ensure security to a person
from unlawful confinement.

BIBILOGRAPHY

Books and Articles:

(i) V.G. Ramachandran, Law of Writs, Eastern Book Company, Vol. II, 6th ed.
(2006)
(ii) V.N. Shukla, Constitution of India, Eastern Book Company, 12th ed. (2012)
(iii) Dr. J. N. Pandey, The Constitution Law of India, Central Law Agency, 48th
ed. (2011) (iv) Francis Paschal, The Constitution and Habeas Corpus, Duke
Law Journal, Volume 4, 1970

Cases:

 Kanu Sanyal v. District Magistrate, Darjeeling & Ors. 1974 AIR 510
 R. v. Vine Street Police Superintendent, (1916) 1 KB 268
 Narayan v. Ishwarlal AIR 1965 SC 1818
 R. v. Pell, (1674) 3 Keb 279
  Ranjit Singh v. State of Pepsu AIR 1959 SC 843
 Ram Singh v. State of Delhi, AIR 1951 SC 270
 Arun Kumar v. State of W.B., (1972) 3 SCC 893
 Lallubhai Jogibhai v. Union of India, (1981) 2 SCC 427
 A.K. Gopalan v. State of Madras, AIR 1950 SC 27
 Chaggan Bhagwan v. Kalna, (1989) 2 SCC 318
 Additional District Magistrate of Jabalpur v. Shivkant Shukla 1976 SC 1207
 Sunil Batra v. Delhi Administration 1980 AIR 1579

Web links:

(i) http://www.legalserviceindia.com/articles/wha.htm
(ii) https://advocatemmmohan.wordpress.com/2012/10/03/it-is-wellaccepted-
principle-that-a-writ-of-habeas-corpus-is-not-to-be-entertainedwhen-a-person-
is-committed-to-judicial-custody-or-police-custody-bythe-competent-court-
by-an-order-which-p/
(iii) http://www.legalservicesindia.com/article/article/you-may-have-thebody-
218-1.html
(iv) http://www.pucl.org/from-archives/81nov/prisoner-rights.htm
(v) http://kvtrust.blogspot.in/2006/03/habeas-corpus-case.html
(vi) http://lawprojectsforfree.blogspot.in/2010/08/constitution-of-indiaanalysis-of-
adm.html
(vii) http://www.harjindersingh.in/supreme-court-in-sunil-batra
(viii) http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/