Q. Discuss the powers of High Court to issue directions of the nature of 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

Latin “that you have the body”

4. MEANING OF HABEAS CORPUS

It is a writ requiring a person under arrest or illegal detention to be brought before a judge or into the
court.

5. DEFINITION OF HABEAS CORPUS

According to Black’s Law Dictionary,

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).

6. OBJECT OF SECTION 491

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.

7. WHO CAN APPLY

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

A stranger has no right to make an application for an order of Habeas Corpus

9. FORM OF APPLICATION

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.

10. DISCRETIONARY NATURE OF POWER OF 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.

11. MODE OF EXERCISING POWERS

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.

12. NATURE OF PROCEEDINGS BEFORE THE COURT

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.

13. DIRECTIONS WHICH CAN BE ISSUE BY HIGH COURT

The High Court may issue following direction in the nature of habeas corpus.

I. PERSON BE BORUGHT UP BEFORE COURT [(491)(1)(a)]

The High Court may whenever it thinks fit direct that person within the limits of its appellate
jurisdiction be brought up before the Court to be dealt with according to law.

II. PERSON ILLEGALLY DETAINED BE SET AT LIBERTY[(491)(1)(b)]

The High Court may whenever it thinks fit direct that a person illegally or improperly detained in
public or private custody within such limits be set at liberty.

When Such Direction Be Issued;

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.

III. PRISONER BROUGHT BEFORE COURT AND EXAMINED AS WITNESS[(491)(1)(c)]

The High Court may direct that a prisoner detained in any jail situate within such limits be brought
before the Court to be there examined as a witness in any matter pending or to be inquired into such
Court.
 IV. PRISONER BE BROUGHT BEFORE A COURT MARTIAL OR ANY COMMISSIONERS
[(491)(1)(d)]
The High Court may direct that a prisoner detained as aforesaid be brought before a Court material
or any commissioners for trial or to be examined touching any matter pending before such Court
martial or commissioners respectively.

V. PRISONER BE REMOVED FROM ONE JAIL TO ANOTHER [(491)(1)(e)]

High Court may direct that a prisoner within such limits be removed from one custody to another for
the purpose of trial.

VI. BODY OF DEFENDANT BE BROUGHT IN ON THE SHERIFFS RETURN OF CEPI

CORPUS [(491)(1)(f)]
The High Court may direct that a body of a defendant within such limit be brought in on the sheriff's
return of cepi corpus to a writ of attachment.

VII. DIRECTION AS TO BETTER TREATMENT OF DETENU

Detenu is kept in confinement in a manner not allowed by law

VIII. DIRECTION FOR MEDICAL EXAMINATION OF DETENU

While setting detenu at liberty, directed the bailiff to get the detenu medically examined for the
beating they were given by police.

IX. DIRECTION TO POLICE

In case of illegal detention, IG was ordered to direct his subordinates to no confine and detain
citizens illegally and improperly and not to harass them

X. DIRECTION TO JAIL AUTHORITIES

Where prisoner whose death sentence has been commuted to life imprisonment was being kept in
death cell. Ordered to be taken out of death cell

14. WHEN PETITION UNDER 491 CR.P.C WOULD FAIL

(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

15. EXCEPTIONS AS TO ISSUANCE OF DIRECTIONS OF THE NATURE OF HABEAS CORPUS

(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

1. UNDER SUBSECTION (1-A)

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)

2. HIGH COURTS DIRECTS BY GENRAL OR SPECIAL ORDER

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).

3. ORDER IS PUBLISHED IN OFFICIAL GAZETTE

The orders issued by HC under 1-A must be published in the OFFICIAL GAZETTE.

4. CONCURENT JURISDICTION CONFERRED UPON SESSIONS JUDGE

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

5. CONFERRED JURISDICTION SUBJECT TO CONDITIONS

“Subject to such conditions as may be specified in the order”

6. DOES NOT TAKE AWAY JURISDICTION FROM THE HIGH COURT

Does not have the effect of taking away jurisdiction from the High Court.

7. POWERS OF SESSIONS JUDGE

(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.