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WRIT OF HABEAS CORPUS
WRIT OF HABEAS CORPUS
SUBJECT: DPC
SUBMITTED TO:
SUBMITTED BY: PRAKASH RAJ
4th Year 8th SemesterRoll- 160
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TABLE OF CONTENTS
Page (s)
Table of Cases 3
List of Abbreviations 4
Introduction 5
Research Methodology 6
Concept 7
Scope under Arts. 32 & 226 8-11
Persons competent File writ 12
Situations File writ 13-16
Conclusion 17
Bibliography 18
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TABLE OF CASES
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 BiharIkram 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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LIST OF ABBREVIATIONS
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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INTRODUCTION
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 issued 1. The HC has power to issue a
writ of habeas corpus for the custody of children wrongly detained by a divorced spouse 2. 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 inRamdeo 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.
1Vidya Verma v. Shiv Narain, AIR 1956 SC 108.2 Sarita Sharma v. Sushil Sharma, AIR 2000 SC 1019
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RESEARCH METHODOLOGY
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 project-
Articles
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 researchpaper.
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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 anddirections 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 writof 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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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 ofres 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. InA 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.
InNagendra 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
5 (1969) 2 SCWR 687.6 Dev Narain Singh v. Union Territory of Chandigarh, (1969) 1 SCWR 339
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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. InDev 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.
7 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 thisregard 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 inA.K.Roy v. Union of India. Another leaf was added to this branch of law
by the decision inManeka Gandhi v. UOI8, which widened the horizon of Art. 21.
PERSONS COMPETENT - FILE WRIT
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
8 Justice B.P. Banerjee, Writ Remedies, 3rd ed. 2004, p. 220.
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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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SITUATIONS WRIT FILED
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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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, theDr. 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
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Begum v. Suggi. In appeal the SC following the English decision inKing 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
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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 28 th
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
9 Shaaf v. Levengood.10 Ibid, p. 218.
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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 inIdris 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 ofMadhu 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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CONCLUSION
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
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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 ofManeka 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.
BIBLIOGRAPHY
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, 17 th 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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