Habeas Corpus

#complete notes on

#Habeas Corpus

#Power to issue directions of the nature of Habeas Corpus

Under Constitution of Pakistan, 1973 the judiciary is seen as the guardian of the Constitution. In this capacity power to protect the Fundamental Rights of the citizens as enshrined under the Constitution is given to the court of law. The superior Courts can exercise this power under 199 however Section 491 the Code of Criminal Procedure, 1898 also expressly provided this power to the High Courts. According to Section 491 of the Code the High Court can issue directions in the nature of habeas corpus if a person is under illegal or improper detention.

#RelevantProvisions:

#Section491 of the Criminal Procedure Code, 1898

#CrossReference:

Article 4, 9, 10, 199 of the Constitution of Pakistan, 1973

#Literal meaning of the term Habeas Corpus:

The term Habeas Corpus is Latin terminology, word Habeas means “to produce” whereas the term corpus is used for “body”. It is an order pertaining to production of anyone before the court of law.

According to Hulsbury Law of England; the writ of Habeas Corpus is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention.

#Constitutional recognition of right to have a free life:

Article 4 of the Constitution recognizes the inalienable right of every individual to be dealt in accordance to law. Article 9 enshrines fundamental right to have a free life in following words; “No person shall be deprived of life or liberty; save in accordance with law”. Article 10 provides safeguard against unlawful arrest and detention. All aforementioned rights are protected by courts under Article 199 of the Constitution of Pakistan, 1973.

#Power to issue directions of the nature of Habeas Corpus:

Section 491 grants discretionary power to the High Court to issue the direction to produce the body before the court to be dealt in accordance to law. In order to invoke the provision of the Section it is necessary that such person illegally detain is within the limits of its appellate jurisdiction. Under this Section order following;

That the person in custody should be brought before the court so that they may be dealt with according to law;

That the person should be set at liberty;

That the person should be brought before the court as a witness;

That a person detained in any jail situate within the appellate jurisdiction be brought before the court martial or any commissioner for trial or be examined regarding any matter pending before such martial or commissioner;

That the prisoner within its appellate criminal jurisdiction be removed from; one custody to another for the purpose of trial;

That the body of detainee be brought in on the sherif’s return of cepi corpus (while executing a writ of attachment, sheriff takes the body of defendant in his custody then he is required to return the writ together with an endorsement, that he has taken the defendant this act of his is called the “cepi corpus”)

#Locus standi to invoke the jurisdiction under Section 491:

The jurisdiction under Section 491 may be invoked either by’

Court on its own (suo moto);

Application of aggrieved party; or

Application by any person having knowledge of illegal detention.

Object of Section 491:

Court held in AIR 1999 Sc 843 that the incalculable value of the habeas corpus is that it enables immediate determination of the right of the person’s freedom.

#Two fold jurisdiction of the High Court under Section 491:

The High Court has two fold jurisdictions under Section 491 the Code of Criminal Procedure, 1898.

#Firstly, to deal with a person within its appellate criminal jurisdiction according to law

#secondly, to set the detainee at liberty if found to be illegally or improperly detained.

#Scope of Section 491:

Jurisdiction vested in court under this section extends not only to the cases where detention is illegal but also where detention is legal but detainee is kept in confinement in a manner not countenanced.

#Remedial nature of the section 491:

The direction given under Section 491 does not aim at punishing previous illegality but to release a man from present illegal detention. It is purely remedial and carries no punitive or deterrent force; save in so far as the authority may be embarrassed by adverse publicity.

#Exceptions to Habeas Corpus:

A writ can’t be granted I following cases;

Where detention is in accordance to law;

Where the effect of it would amount to review the judgment of a superior court

Where the person concerned is not within the limit of appellate jurisdiction of the court.

Delegation of power by the High Court under Section 491:

The High Court may by general or special order published in official gazette, direct that any of the power granted under section 491 shall be exercised by;

#Sessions court; or

#Additional sessions Judge with #the territorial limits of a session division.

#Conclusion:

It can be concluded that the proceedings under Section 491 legally by their very nature are summary in character and neither controversies can be tried nor entire evidence be recorded. Jurisdiction under this section being extraordinary in its very nature should be sparingly used.