TMI Blog1973 (9) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... giving rise to the petition, nor is it necessary to set the grounds on which the petitioner contends that he has been illegally restrained of liberty. It would be sufficient to state that the petitioner filed the petition for a writ of habeas corpus contending that he has been wrongfully deprived of liberty and that he, should be released forthwith from his confinement. The petition was forwarded to this Court by the petitioner from the Central Jail, Visakhapatnam where he is detained as an undertrial prisoner pursuant to the remand granted from time to time by the Special Magistrate, Visakhapatnam before whom committal proceedings are pending against him in P.R.C. Nos. 1 and 2 of 1971. When the petition came up for preliminary hearing on 2nd April, 1973, Mr. Garg appeared on behalf of the petitioner with the permission of the Court, and after hearing him the Court made an order for the issue of rule nisi, but directed that there should be no personal production for the present. Three affidavits in reply were filed in answer to the rule nisi, one by respondent Nos. 1 and 5, the other by respondent No. 6 and the third by respondent No. 7.- When the petition reached hearing before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he legality of the detention unless the body of the person alleged to be wrongfully detained was produced before the Court. If the Court, on return being filed by the respondent, proceed,,, to examine the legality of the detention without insisting on the production of the body of the person alleged to be wrongfully detained and, on finding that the detention is unlawful, orders release of the person wrongfully detained, that would undoubtedly give relief but that would be some other relief and not a writ of habeas corpus. That is not what the petitioner has sought here nor is it what the petitioner claims to be entitled to. The petitioner has sought a writ of habeas corpus, that is his fundamental right under Art. 32 and that requires that the body of the petitioner must be produced when the legality of his detention is inquired into by the Court. Mr. Garg relied heavily on Order XXXV, r. 4, which is in the following terms: .lm15 The petition shall be posted before the Court for preliminary hearing, and if the Court is of the opinion that a prime facie case for granting the petition is made, out, a rule nisi shall issue calling upon the person or persons against whom the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a writ of habeas corpus, because the right to obtain a writ of habeas corpus is a fundamental right under Art. 32. The submission of Mr. Garg, therefore, was that it was not competent to the Court to direct that the petitioner need not be produced in person at the hearing of the rule nisi and the production of the person of the petitioner was essential before the petition could be finally disposed of by the Court. We do not think this submission is well founded. It proceeds on a misapprehension of what are the basic and essential features of a writ of habeas corpus as it has developed over the centuries in the country of its origin and as it is administered in the countries governed by Anglo Saxon jurisprudence. The writ of habeas corpus is one of the most ancient writs known to the common law of England. It is a writ of immemorial antiquity and the first threads of its origin are, woven deeply within the seamless web of history and they are concealed and perhaps untraceable among countless incidents that constitute the total historical pattern. Earl of Birkenhead described it in his speech in the Secretary of State v. O Brien([1923] A. C. 603) as a writ antecedent to stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... courts, the Council, the Star Chamber, the admiralty and the High Commission and in this struggle for supermacy between the combatant courts, the writ of habeas corpus cum causa came to be a most effective weapon in the hands of the common law courts. The reason why it became so may be explained by quoting the following passage from the article of Maxwell Cohan on Habeas Corpus Cum Causca in 18 Canadian Bar Review at page 20: The struggle took the form of the assertion of jurisdiction on the part of combatant courts over matters as well as persons. Now the corpus cum causa was essentially a personal writ in the sense that the person of the party named was the subject matter to be had and dealt with by the court. It will at once be apparent that if the Chancery or Exchequer or the special courts could not retain control over the bodies of parties and suitors before them and, further, could not control their actions upon the determination of the suit so as to ensure execution of their judgments, their power would be seriously impaired. This was precisely what the King s Bench and Common Pleas had in mind when they issued writs of habeas corpus to applicants held under the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms were introduced by the Habeas Corpus Act, 1679, and when even these reforms were found insufficient, the Habeas Corpus Act, 1816 was enacted by which the benefit of the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the writ. The machinery of the writ was thus perfected by legislation and it became one of the most important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury L.C., in Cox v. Hakes,[1890] 15 A. C. 506) it has throughout been jealously maintained by courts of law as a check upon the illegal usurpation of power by the executive at the cost of the liege. It will be seen from this brief history of the writ of habeas corpus that it is essentially aprocedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be wrongfully detained before the court in order to be able to inquire into the, legality of his detention and set him free, if it is found that he is unlawfully detained. The question is whether in these circumstances it call be said that the production of the body of the person alleged to be unlawfully detained is essential in an application for a writ of habeas corpus. We do not think so. There is no reason in principle why that which was merely a step in the procedure for determining the legality of detention and securing the release of a subject unlawfully restrained should be elevated to the status of a basic or essential feature of the writ. That step Was essential to the accomplishment of the purpose of the writ at one time, but it is no longer necessary. The inquiry into the legality of the detention can be made and the person illegally detained can be effectively set free without requiring him to be produced before the court. Why then should it be necessary that the body of the person alleged to be wrongfully detained must be produced before the court before an application for a writ of habeas corpus can be decided by the court ? Would it not mean blind adherence to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. . S. 428)of issuing rule nisi in the first instance. If the applicant made out a prima facie case of unlawful detention, a rule nisi would issue to the respondent and on the rule nisi the case would be argued on the merits and if the court holds the detention illegal, there would be rule absolute for the issue of the writ and the body would be brought up and discharge ordered. This of-course does not mean that in no case would a writ issue on exparte application. The court could always issue a writ forthwith on the exparte application, but this power would not ordinarily be exercised except in an urgent case or when time is of importance or where there is a likelihood that delay may defeat justice, as for example, it is apprehended that the person detained may be removed outside the jurisdiction. (see Halsbury s Laws of England, Vol. II. page 39, para 72, and Be Anand ([1941] 2 K B. 239) Now, where is rule nisi is issued. which is the normal event, and on the hearing of the rule risi, the court finds that the, detention is unlawful , it would be superfluous to ,issue a writ requiring the production of the body of the person detained in order merely to release him from detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 217. If made to the Court, the application shall be by motion for an order, which if the Court so direct may be made absolute ex parte for the writ to issue in the first instance; or if the Court so direct they may grant an order nisi. R.218. If made to a judge he may order the writ to issue ex parte in the first instance, or may direct a summons for the writ to issue. Rule 225 then proceed to state that On the argument of every ,order nisi or summons at Chambers for a writ of habeas corpus the Court or Judge may, in its or his discretion, direct an order to be drawn up for the prisoner s discharge, which order shall be a sufficient warrant to any gaoler or constable or other person for the discharge of the prisoner or any infant or person under restraint. It is thus evident that if, on the hearing of the rule nisi or summons, it was found that the detention was unlawful, the person detained would be released forthwith without requiring him to be brought before the court. The validity of this practice was assailed before the House of Lords in Cox v. Hakes (supra) and it was contended that it was not competent to the High Court to discharge the prisoner without having h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue in accordance with r. 5, but a modern practice has grown up of making an order for release as provided by r. 4-, in which case the writ is not formally issued: the Master of the Crown office writes to the prison governor directing the discharge of the prisoner, and the return to the writ need not show the cause of detainer but merely the fact of release. Wade and Phillips also in their Constitutional Law (8th ed.) at page 492 described the modem practice and procedure in an application for a writ of habees corpus in the same terms : If prima facie grounds are shown, the Court or Judge ordinarily directs that notice of motion be given or a summons issued. Argument on the merits of the application then takes place on the day named. If the Court decide,- , the writ should issue, it orders the release of the prisoner or the handing over of the infant to the applicant, and this order is sufficient warrant for the release. Under this practice there is no need to produce the prisoner in court at the hearing and no return to the writ is actually made. It is, therefore, evident that even in England, which is the country where the writ of habeas corpus originated, the super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inted out that such is the practice of this court. The Supreme Court also observed ill an oft quoted passage from the judgment in Walker v. Johnston :(312 U. S. 275; 85 L. Ed. 830) Since the allegations of such petitions are often inconclusive, the practice has grown up of issuing an order to show cause, which the respondent may answer. By this procedure the facts on which the opposing parties rely may be exhibited, and the. court may find that no issue of fact is involved. In this way useless grant of the writ with consequent production of the prisoner and of witnesses may be avoided where from undisputed facts or from incontrovertible facts, such as those recited in a court record, it appears, as matter of law, no cause for granting the writ exists. On the other hand, on the facts admitted, it may appear that, as matter of law, the prisoner is entitled to the writ and to a discharge. This practice has long been followed by this court and by the lower courts. It is a convenient one, deprives the petitioner of no substantial right . It would thus be seen that according to the practice in the United States a rule nisi is issued in the first instance and on the hearing of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for a writ of habeas corpus under Art. 32, the Supreme Court should shut its eyes to the development in the law in regard to the writ of habeas corpus in the last two hundred years, in the country of its origin and the manner in which the jurisdiction in regard to the writ of habeas corpus is exercised in the country of its adoption across the Atlantic, and ignoring the facts of history, allow itself to be petrified in the age of the Tudors and the Stuarts when the writ was struggling to emerge as an effective weapon in the protection of personal liberty. There can be no doubt that in enacting Art. 32(2) the Constitution makers meant to give to person illegally restrained of his liberty the same kind of remedy, fashioned and developed over the years, which is counterpart enjoyed in England and the United States. It would indeed be highly anomalous and strange that when in England and the United States the remedy by way of a writ. of habeas corpus is shown of its superfluous element and made more Convenient and effective from a functional view point by dropping the requirement of production of the person detained, we in India should still hold ourselves bound by the old form of pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .LVII, Tr. 1 and 6 of the Supreme Court Rules. Order XXXV, T. 4 provides that if on the preliminary hearing the Court is of opinion that a prima facie case for granting the petition is made out-and granting the petition would mean passing an order of release of the person detained-a rule nisi shall issue calling upon the respondent to appear and show cause why the order sought, namely, order for release of the person detained, should not be made and at the same time to produce in Court the body of the person detained then and there, to be dealt with according to law . It would appear that according to this Rule the body of the person detained must be produced in Court on the, day fixed for the hearing of the rule nisi. But Order XLVII, r. I empowers the Court, for sufficient cause shown, to dispense with this requirement of Order XXXV, r. 4 and the Court may direct in an appropriate case- that the body of the person detained need not be produced in Court at the hearing of the rule nisi. The same is the effect of Order XLVII, r. 6. Where such it direction is given, the Supreme Court would hear the rule nisi without the person detained being brought before it and, as provided in Ord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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