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SUBMITTED TO: SUBMITTED BY: PRAKASH RAJ 4th Year 8th Semester Roll- 160


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Page (s)
Table of Cases List of Abbreviations Introduction Research Methodology Concept Scope under Arts. 32 & 226 Persons competent File writ Situations File writ Conclusion Bibliography 3 4 5 6 7 8-11 12 13-16 17 18


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A K Gopalan v. Government of India A.K.Roy v. Union of India Dev Narain Singh v. Union Territory of Chandigarh Ghulam Sarwar v. Union of India Gohar Begum v. Suggi Idris Mohd. v. State of Bihar Ikram v. State of UP King v. Greenhill & Queen v. Clarke Madhu Bala v. Marendra Kumar Maneka Gandhi v. UOI Nagendra Nath Mondal v. State of WB Naresh Chandra v. State of WB Nazul Ali Molla v. State of WB Prem Shankar Shukla v. Delhi Administration R. v. Governor of Brixton Prison exp. Armah Ramdeo v. State of Bihar Sant Bir v. State of Bihar Sarita Sharma v. Sushil Sharma S.P.Gupta v. UOI State Trading Corporation of India, Limited v. Commercial Tax Officer Sunil Batra v. Delhi Administration Veena Sethi v. State of Bihar Vidya Verma v. Shiv Narain


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Art. Article CrPC Code of Criminal Procedure HC High Court S. Section SC Supreme Court UP Uttar Pradesh UOI Union of India v. versus WB West Bengal


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The expressions, habeas corpus means that you have the body while the original expression habeas corpus and subjiciendum means that you have the body to submit or answer. The importance of this writ is linked up the liberty of a person. A person cannot be deprived of his liberty except by due process of law. Article 32 of the constitution provides for the issuance of writ of habeas corpus for enforcing fundamental right, but in case of infringement of personal liberty of a person by private individual no writ can be issued1. The HC has power to issue a writ of habeas corpus for the custody of children wrongly detained by a divorced spouse2. A writ of habeas corpus is not issued to release a foreigner whose entry or continuance on Indian Territory is illegal. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction of imprisonment. Its object was not the punishment of the wrong doer but to secure release of the prisoner without which he may not be in a position to pursue his legal remedies against the wrong doer. The writ empowers that court to direct the person or authority who has detained another person to bring the body of the prisoner before the court so that the court may decide the validity, jurisdiction or jurisdiction of such detention. It is also available where a person has been kept in custody under an order which has no authority of law as was in Ramdeo v. State of Bihar. Thus, the project topic has covered all the possible aspects whereby writ of habeas corpus applies. The project starts with the introduction which talks about the writ of habeas corpus and its scope in concise. The very next chapter talks about the meaning of writ of habeas corpus and its genera concept. The next chapter deals with the scope of writ under the Articles 32 and 226 of the constitution. This has been discussed with huge amount of case laws to make the law more clear. The next chapter deals with the persons who are competent to file the writ of habeas corpus with some cases. Again another chapter talks about the situations whereby the writ is filed in the Indian courts. This has been dealt under certain landmark judgments. Thus the project covers all aspects in general.
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Vidya Verma v. Shiv Narain, AIR 1956 SC 108. Sarita Sharma v. Sushil Sharma, AIR 2000 SC 1019


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The project is basically based on the doctrinal method of research as no field work is done on this particular topic. The whole project is made with the use of the secondary sources. The main source material for the project was provided by the books, articles and websites. Sources of Data: The following secondary sources of data have been used in the projectArticles Books Websites Method of Writing: The method of writing followed in the course of this research paper is primarily analytical. Mode of Citation: The researcher has followed a uniform mode of citation throughout the course of this research paper.


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Habeas Corpus is a writ. It is a writ to assert personal liberty. The full name of the writ is habeas corpus adsubjiciendium whereby habeas corpus means that you have the body habeas corpus adsubjiciendium means that you have the body to submit or answer as according to Ghulam Sarwar v. Union of India3. This writ is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful detention whether in state prison or in private custody. By this writ, the court commands the production of the subject and enquires into the clause of detention. If there is no legal justification for the detention, the man is ordered to be released from the custody. The nature of character of the person wrongfully detained is immaterial. The importance is on personal liberty. The vigilance with which it must be protected and the care which must be taken to see that a person is not deprived of his liberty except by due process of law. The principal aim is to provide for a swift judicial review of alleged unlawful restraint liberty. In the words of Blackstone, it is directed to the person detaining another and commanding him to produce the body of the prisoner with the day and cause of its action and although it has been said that in habeas corpus proceedings, the court will review the detention order only to see that it is made within jurisdiction. In the decision of the House of Lords in R. v. Governor of Brixton Prison exp. Armah4, the scope of habeas corpus has been widened. It extends to mere error on the face of the record, even though within jurisdiction. At one time the prisoner would have to obtain certiorari to quash the detention order, at the same time as habeas corpus to secure release, in order to succeed on this ground. The writ of habeas corpus plays a definite part in administrative law. It is a remedy for control of power since some authorities have powers of detention and they are apt to misuse or abuse the same. A writ of habeas corpus challenges the legality of detention and in that way challenges validity of administrative order. Habeas corpus cannot be used as a means of appeal, but only of review. Accordingly, habeas corpus will be granted if it can be shown that the order of detention is ultra vires on any of the normal grounds, such as a wrong finding of jurisdictional facts; or the order is vitiated by error on the face of the record or if it is supported by no evidence.

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Air 1967 SC 1335. (1968) AC 192


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SCOPE UNDER Arts. 32 & 226

The coming into force of the constitution of India settled the position of habeas corpus. Both under Arts. 32 and 226, the liberty of the subject can be protected by any suitable orders and directions that the court may consider necessary and appropriate.

Habeas Corpus under the Constitution of India

The constitution has extended the scope for habeas corpus on one hand and restricted on the other. By adopting Art. 226, the constitution has done away with the territorial and other statutory limitations to which the HC were subject in relation to habeas corpus prior to the framing of constitution. Every HC in India now possess the power to issue the prerogative writ of habeas corpus not only for the enforcement of fundamental rights and for the purposes for which it used to be granted prior to the constitution but also for any other purpose for which the writ or an order in the nature of habeas corpus may be properly issued. Such jurisdiction extends to the entire territorial jurisdiction of each of the HC, whether original or appellate. The most important extension of habeas corpus jurisdiction under the constitution is the constitutionality of the very statute under which the person has been arrested or detained can be challenged in the proceeding for habeas corpus. The reason is that Art. 21 of the constitution of India guarantees that no person shall be deprived of his personal liberty except under the procedure established by law. So, when a person complains that he has been detained in pursuance of an enactment which violates the fundamental rights guaranteed by the constitution, it is the duty of the court, under Arts. 32 in SC and 226 in HC to examine the plea and to give him that relief if it be true. It is well-settled that in dealing with a petition for habeas corpus, the court has to see whether the detention on the ground on which the application is made to the court is legal, if nothing more has intervened between the date of the application and the date of the hearing. The fundamental right that is said to be infringed is the one conferred by Art. 21- the right to personal liberty. A person whose rights of property are infringed by a private individual must seek his remedy under the ordinary law and not under Art. 32. Art. 32 do not apply to invasions of a right by a private individual and consequently no writ under Art. 32 would lie


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WRIT OF HABEAS CORPUS in such a case. In Nazul Ali Molla v. State of WB5, the contention was that the petitioners had moved the HC under Art. 226 of the constitution of India for their relief and in those petitions the rules issued were discharged and that those orders of the HC not having been brought up in the appeal in the SC became final and, therefore, the petitions under Art. 32 of the constitution should b held to be barred by the principle of res judicata. The SC held that even in England until the habeas corpus act, 1960 was passed; the principal recognized was that a person illegally detained had the right to go from court to court though it was held that he could not go to different judges of the same court. In the SC there is no decision that a petition under article 32 of the constitution for the issue of a writ of habeas corpus is to be held to be barred on the principle of res judicata if a petition for a similar writ under article 226 of the constitution before a HC has been decided and appeal is brought up to the SC against that decision. In a question of habeas corpus, when the lawfulness or otherwise of the custody of the persons concerned is in a question it is obvious that the order or remand would be of vital importance. In habeas corpus proceedings the court is to have regard to the legality or otherwise of the detention at the time of return and not with reference to the institution of the proceedings. A person detained in jail pursuant to an order of a magistrate who is seized of a case against him, cannot be said to be in unlawful detention and jurisdiction of a SC t issue a writ of habeas corpus cannot be attracted6. In A K Gopalan v. Government of India, inordinate delay took place between making of the petitions to the jail authorities and their reaching to the SC. The petitions were made on March 15, 1965, but they reached the SC on April 12, 1965 exactly four weeks later. Ordinarily, one week was enough for any such petition to reach the SC from any part of India. It was held that it was the duty of the jail authorities to send such petitions directly and at once to the SC and indeed to the HC where they were addressed to them. It is wrong to think that in the writ of habeas corpus proceedings the court is prohibited from ordering an enquiry into the fact. All procedure is always open to the court which is not expressly prohibited and no rule of the court has laid down that evidence shall not be received, if the court requires it.

In Nagendra Nath Mondal v. State of WB, two additional grounds were raised. Neither of them was, however raised in the petition, but since that was a habeas corpus petition, and
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(1969) 2 SCWR 687. Dev Narain Singh v. Union Territory of Chandigarh, (1969) 1 SCWR 339


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WRIT OF HABEAS CORPUS furthermore, made by the petitioner from jail, he was allowed to take them though ordinarily he would not have been permitted to do so as they did not find any place in the petition. The effect of non-production of jail record in the habeas corpus petition has been discussed in Gauri Shankar Jhas case. The detention pursuant to an order of remand which appropriately falls within the terms of section 344 of CrPC, is not open to challenge in habeas corpus. While dealing with a habeas corpus petition under Art. 226 of the Constitution of India, the HC has jurisdiction to grant interim relief by way of bail to a detenue who has been detained under Rule 30 of the defence of India rules. The jurisdiction of the HC to pass an interim order does not depend upon the nature of the order, but upon its authority to give interim relief to a party which is auxiliary to the main relief to which the party would be entitled if it succeeds in its petition. If the court has jurisdiction to give the main relief to the detenue at the end of the proceedings on principle and theory, it is not easy to understand why the court cannot give interim relief to the detenue pending final disposal of his writ petition. The interim relief no doubt must be in aid of or auxiliary to the main relief. Releasing the detenue on bail is in aid of or auxiliary to the main relief. A direction given by the HC in a proceeding for a writ of habeas corpus for the production of the body of a person has to be carried out and if disobeyed the contemnor is punishable by attachment and imprisonment. A valid excuse will, however, be that it is impossible to obey the order. Even if the direction was inexpedient, it has to be complied with unless the appellant could plead and prove his inability to comply with it. A petition for writ under Art. 32 of the constitution is not maintainable unless there has been a violation of some fundamental right7. In Dev Narain Singh v. Union Territory of Chandigarh, the petition did not disclose infringement of any fundamental right. The petitioner has for the last nearly 12 years been in detention or in jail in respect of various proceedings and criminal trials. However, the petitioner has not set up infringement of any fundamental right in respect of which the SC is competent to grant him relief. The fact that if he had been convicted in respect of the offences for which he I charged he would not have, as he claims, been ordered to go imprisonment for a period of 12 years, is also no ground in support of a petition under Art. 32 of the Constitution. Our statute law on the subject is based entirely on secular consideration which places the protection and welfare of society in the forefront. What the statute law does not prohibit or enjoin cannot be enforced by means of a writ of mandamus under Art. 226 of the Constitution so as to set at naught a duly passed sentence of a court of justice.

Bhagwandas Ganga Sahai v. Union of India, AIR 1956 SC 175


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Arena of challenge
The higher courts in India being custodians of the fundamental rights have shown their great anxiety to protect the liberty as much as it is constitutionally possible. The approach in this regard has been that detention without trial is an evil to be suffered, but to no greater extent and in no greater measure than is minimally necessary in the interest of the country and the community as stated in A.K.Roy v. Union of India. Another leaf was added to this branch of law by the decision in Maneka Gandhi v. UOI8, which widened the horizon of Art. 21.


The only person who can impugn any piece of legislation under Art. 32 are those who are aggrieved thereby. The effect of confining Art 19 to citizens as distinguished from persons to whom other Arts. Like Art. 14 apply, clearly must be that it is only citizens to whom the rights under Art 19 are guaranteed. If the legislature intends the benefit of Art. 19 should be made

Justice B.P. Banerjee, Writ Remedies, 3rd ed. 2004, p. 220.


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WRIT OF HABEAS CORPUS available to the Corporations; it would not be difficult for it to adopt a proper measure in that behalf by enlarging the definition of citizen prescribed by the Citizenship Act passed by the parliament by virtue of the powers conferred on it by Arts. 10 and 11. On the other hand, the fact that the parliament has not chosen to make any such provisions indicates that it was not the intention of the parliament to treat corporations as citizens. Therefore, in view of the decision in the case of State Trading Corporation of India, Limited v. Commercial Tax Officer, the petitioners cannot be heard to say that their shareholders should be allowed to file the present petitions on the ground that in substance, the corporation and companies are nothing more than associations of shareholders and members thereof. But if fundamental rights of shareholders, editors and printers were at stake, they are entitled to resort to Art. 32, notwithstanding the company had already moved the SC under Art. 32. The SC would decline to issue a writ of mandamus except at the instance of a party whose fundamental rights are directly and substantially invaded pr are in imminent danger of being so invaded. All those who would be affected adversely by the order to be passed should be impleaded as respondents. Any public spirited person can approach the court for this writ. The SC has even treated letter or a telegram as a petition for this writ as in the case of Sunil Batra v. Delhi Administration. So anybody acting pro bono public can knock the doors of the court for this relief. As laid down in S.P.Gupta v. UOI, where the weaker sections of the community are concerned such as under trial prisoners languishing in jails without a trial, inmates of the Protective home in Agra or harijan workers engaged in road construction in Ajmer district who are living in poverty and destitution, who are barely eking out a miserable existence with the sweat and

toil, who are helpless victims of an exploitative society and who do not have easy access to justice, the court will not insist on a regular petition to be filed by the public spirited individuals espousing their cause and seeking relief for them. This court will readily respond even to a letter addressed by such individual acting pro bono publico.


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In India the broader horizons of habeas corpus are spread out beyond the orbit of release from illegal custody into every trauma and torture of persons in legal custody. If cruelty is contrary to law, it degrades human dignity or defiles his personhood to a degree that violates Arts. 21, 14


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WRIT OF HABEAS CORPUS and 19 of the Constitution enlivened by the preamble as laid down in Prem Shankar Shukla v. Delhi Administration. Habeas corpus does not lie unless a person has been arrested or detained by placing a physical restraint, actual or constructive, upon the liberty of movements of the petitioner. Habeas corpus lies in:

To protect fundamental rights a writ of habeas corpus can be issued for

protection of fundamental rights of the petitioner. Thus, the Dr. Ram Manohar Lohias case, the majority view of the Allahabad HC was upheld by the SC in appeal. The opinion was that the provisions of section 3 of the UP Special Powers Act, 1932 making it penal foe a person by spoken words to instigate a class of persons not to pay dues recoverable as arrears of land revenue was inconsistent with the freedom of special speech vouchsafed under Art. 19(1) (a) of the constitution and must, therefore, be struck down as void. The restraints put by section 3 were held to be not in the interests of public order. For even innocuous speeches were prohibited by the threat of punishment and there was no foreseeable connection between such instigation and the public order sought to be protected by the Article. The writ of habeas corpus was, therefore, issued.

To protect detenue In Naresh Chandra v. State of WB, the detenue was the
secretary of WB Bhartiya Jansangh and the main ground of detention was that he was acting in a manner prejudicial t the maintenance of public order. On the refugee question and making over of certain enclaves to Pakistan by Shri Jawaharlal Nehru, the PM of India, he had serious differences with Nehru even to the extent of plotting a

murder against him. The petitioners application for a writ of habeas corpus was dismissed in the HC which was confirmed in appeal by the SC.

To protect minors A writ of habeas corpus was issued when Gohar Begum applied
for custody of her illegitimate daughter seven years old under section 491 of CrPC, 1898, to the Bombay HC which however refused the application in the case of Gohar CHANAKYA NATIONAL LAW UNIVERSITY, PATNA Page 14

WRIT OF HABEAS CORPUS Begum v. Suggi. In appeal the SC following the English decision in King v. Greenhill & Queen v. Clarke, was of opinion that section 491 was expressly concerned with directions of the nature of a habeas corpus where, as frequently occurs in the case of infants, conflicting claims for the custody of the same individual are raised, such claims may be inquired into on the return to a writ of habeas corpus, and the custody awarded to a proper person. Such a relief is denied under section 491 of the code, in the case of infants will be a great hardship and against settled notions of the law. The appeal was allowed. The issue of the writ in the case of infants infers some modification of the general idea of imprisonment, and the extension of the original design of the writ. The term imprisonment usually imports a restrain contrary to the wishes of the prisoner, and the writ of habeas corpus was designed as a remedy for him to be invoked as his instance to set him at liberty, not to change his keeper. But in the case of infants, an unauthorized absence from the legal custody has been treated atleast for the purpose of allowing the writ to issue, as equivalent to imprisonment; and the duty of returning to such custody, as equivalent to a wish to be free. The writ must be viewed in two aspects. In form it purports to be an inquiry into the question, where the child is unlawfully restrained of its liberty; infact it is ordinarily a means for investigating determine which of the two parties has the better right to its custody. It is not the limited jurisdiction of the writ that is invoked, because the proceeding is not directed towards freeing children from imprisonment, but to exercise the broader power of courts of general equity jurisdiction over the custody of the persons of infants. Such cases are not decided on the legal right of petitioner, as in the case of an adult, but upon the courts view of the best interests of those whose welfare requires that they be in custody of one person or other. The question of

personal freedom is not involved except in the sense of a determination as to which custodian shall have charge of one not entitled to be free from restraint. The real office of the writ in such cases is to develop before the court what the true interests of the detained child are, and an order is made accordingly. Courts in exercising their discretion will look both to the present and future interests and welfare of the child. The writ rests on the assumption of a right in the state, paramount to any parental or other claim, to dispose of such children as their best interests required. The legal rights of a CHANAKYA NATIONAL LAW UNIVERSITY, PATNA Page 15

WRIT OF HABEAS CORPUS parent are very generally considered, but are not enforced to the disadvantage of the child. The court is not to stop wit the mere removal of illegal restraint, but can go further and transfer the custody from one person to other. These are the matters which are left in the discretion of the court seeking to promote the well-being of the child. As between the guardian and ward, the legal guardian has a prima facie right to the custody of his ward, and may enforce such right by habeas corpus. The fact that the father of the child may have, previous to his death, committed the child to the custody and care of respondent, is not regarded as controlling against the legal right of the guardian. But the guardians right may be overthrown, without the filing of any petition for such guardians removal, by proof of unfitness, the welfare of the child being the vital question. The guardian stands in te same situation in regard o the custody of the child as the father. His rights are no greater. Although the guardian may be well fitted and competent to have charge of and manage the estate of his ward, he may yet not be a fit or suitable person to have the custody, care and education of the ward9.

Detention without any reasonable cause

There are instances where people are kept in the jail without any reasonable ground for long time. In Sant Bir v. State of Bihar, the petitioner was sentenced to life imprisonment on the 28th February, 1949. Since the mental condition of the petitioner was not stable, on the 20th November 1951, the petitioner was transferred to another jail for confinement as a criminal lunatic. The medical history and the report indicate that the petitioner was fully recovered and was fit for discharge. The jail superintendent sent the reports to the state government for necessary orders. The state government instead of release of the petitioner directed the jail superintendent to keep the petitioner for safe custody, as a criminal lunatic. The SC observed why the state government instead of releasing the petitioner on a surety when he was completely recovered, kept him in jail. There was nobody to stand surety for the petitioner and the petitioner had to spend ten years more in the jail. The petitioner was kept in the jail without the authority of law. The SC directed that the petitioner should be released from the jail and set at liberty forthwith. In Veena Sethi v. State of Bihar10, some prisoners were detained in prison for period from 20 to 37 years. They were arrested in connection with certain offences and were declared insane at


Shaaf v. Levengood. Ibid, p. 218.


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WRIT OF HABEAS CORPUS the time of their trial and were put in the central jail with directions to submit half-yearly medical reports. Some were convicted, some acquitted and trials were pending against some of them, while they were declared san, no action for their release was taken by the authority for years to come. In some cases half-yearly reports were not available. Te prisoners remained in jail for no fault of theirs. Even if they were proved guilty, the period they had undergone would exceed the maximum imprisonment than they might be awarded, hence they should be released forthwith.

Custody of wife
In order to recover the custody of wife ordinary remedy lies in a civil suit or through a proceeding under section 100 of the CrPC. In those proceedings the issues of fact cannot be tried, but the HC can also make an enquiry into facts in a proceeding for habeas corpus as laid down in Ikram v. State of UP. In order to take recourse to this writ of habeas corpus, the petitioner will have to establish that he is the husband and the valid marriage has already been taken place between him and the woman. This was decided in Idris Mohd. v. State of Bihar. But the writ would not lie where the woman, being a major, gives consent to such detention. In the case of Madhu Bala v. Marendra Kumar, the appellant was 21 years f age and she clearly and unequivocally stated that she was not being detained by her parents and as such the writ is not maintainable. A habeas corpus petition may b filed either by the detenue or by someone on his or her behalf as a next friend. If the woman detained in a rescue home is of the age of consent and sui juris, the court has no option but to respect her wishes as laid down in Gian Devi v. Superintendent Nari Niketan. The writ is not maintainable where the petitioner himself is charged with criminal offence in respects of the very woman whose custody he demands the writ. Cases of ill-treatment of brides by their husbands or in-laws in connection with demands of dowry are regrettably becoming frequent, and in those cases the brides parents, brothers, brothers or other relatives or even a genuine social reforms organization may also resort to this remedy against the offending husband and in-laws.


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If there is a complaint by any person that he is being detained illegally or improperly, the law has provided means to set him a liberty. It is therefore a process by which a person who is in confinement without jurisdiction may secure his release from such confinement. It is no doubt to stress the constitutional importance of the writ of habeas corpus as a mechanism for indicating the liberty of the individual, its use today is much diminished. The remedy has failed in some cases to measure upto the standards of the European Convention on Human Rights. There are still situations where it is the most expeditious remedy for dealing CHANAKYA NATIONAL LAW UNIVERSITY, PATNA Page 18

WRIT OF HABEAS CORPUS with unlawful confinement and it may be that the writ is about to take on a new lease of life as a form of interim, rather a final relief. The defect was that when the terms of the statute afford executive discretion, whether wide or narrow the review exercisable by the court in habeas corpus proceedings would bear solely upon the conformity of the exercise of that discretion with the empowering statute. The writ of habeas corpus lies not only for release from detention by the state but also from private custody. A writ of habeas corpus is for immediate service and the court has no jurisdiction to issue a writ not intended for immediate service. This writ is frequently used in cases of preventive detention. Art. 21 of the constitution guarantees the fundamental right of life and liberty of a person which cannot be taken away except in accordance with law. Courts have power not to recognize a statutory provision as a constitutionally valid law within the meaning o this Article if the provision is vague, unconscionably harsh, unreasonable or unfair, or violative of the principle of natural justice as laid down in the case of Maneka Gandhi v. UOI. Thus, the project has taken into consideration all the aspects with leading case laws for the purpose of understanding the writ very well. This writ is very much common in both civil and criminal litigations. With time there have been many changes in the application of the writ by the people which are positively entertained by the courts of law. Thus, the writ of habeas corpus now still is undergoing many changes with time to come.


Justice B.P. Banerjee, Writ Remedies, 3rd ed. 2004, Wadhwa and Company, Nagpur.

N.S. Bindra, Pleadings and Practices, Part 2, 9th ed. 2010, Universal Law Publishing Company, Delhi.


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M.C Agarwal and G.C. Mogha, Law of Pleadings in India, 17th ed. 2009, Eastern Law House, New Delhi.

Murli Manohar, Art of Conveyancing and Pleading, 2nd ed. 2004, Eastern Book Company, Lucknow


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