Full Judgment Text
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PETITIONER:
KANU SANYAL
Vs.
RESPONDENT:
DISTRICT MAGISTRATE, DARJEEIJNG & ORS.
DATE OF JUDGMENT11/09/1973
BENCH:
BHAGWATI, P.N.
BENCH:
BHAGWATI, P.N.
SIKRI, S.M. (CJ)
PALEKAR, D.G.
CHANDRACHUD, Y.V.
KRISHNAIYER, V.R.
CITATION:
1973 AIR 2684 1974 SCR (1) 621
1973 SCC (2) 674
CITATOR INFO :
E 1976 SC1207 (500)
ACT:
Constitution of. India, Art. 32-Habeas Corpus-O.XXXV, rr. 4
and 5 and O. XLYII. rr. 1 and 6 of Supreme Court Rules-
Whether Production of the body of the detenu before the
Court essential for the disposal of the petition by the
Court.
HEADNOTE:
The petitioner, an undertrial prisoner, filed a petition
under Art. 32 for the issue of writ of habeas corpus. The
Court issued rule nisi but directed that the petitioner need
not be produced in person. On the question whether the pro-
duction of the body of the person detained was essential
before the application for a writ of habeas corpus could be
finally heard and disposed of by the Court.
HELD : (1) There is nothing in Art. 32 which requires that
the body of the person detained must be produced before an
application for a writ of habeas corpus could be heard and
decided by the Court. It is competent for the court to
dispense with the production of the body of the person
detained while issuing a rule nisi under O.XXXV, r. 4 of the
Supreme Court Rules and the rule nisi could be heard and an
appropriate order passed in terms of O.XXXV, r. 5 without
requiring the body of the person detained to be brought
before the Court. [635F-G]
(2)in enacting Art. 32(2) the Constitution-makers meant to
give to a person illegally restrained of his liberty the
same kind of remedy, fashioned and developed over the years
in England and the United States. Both on a priori
reasoning as also on the basis of the practice in England
and the United States, the production of the body of the
person detained was not a basic or essential requirement of
a proceeding for a writ of habeas corpus. [633-H]
The Supreme Court could examine the legality of the
detention of the hearing of the rule nisi without requiring
that the person detained be brought before the Court, and if
the detention is found unlawful, order him to be released
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forthwith. [634-F]
(3) The same procedure is set out in O. XXXV,rr.4 and 5 read
with O. XLVII, rr. 1 and 6 of the Supreme Court Rules. O.
XXXV, rr. 1 and 6 of the Supreme Court Rules provides that
if on the preliminary hearing the Court is of opinion that a
prima facie case for granting the petition is made out, 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".
But O. XLVII, r. 1 empowers the Court, for sufficient cause
shown, to dispense with the requirements of O. XXXV, r. 4
and the Court may direct in an appropriate case that the
body of the person detained need no, be produced in Court at
the hearing of the rule nisi. The same is the effect of O.
XLVII, r. 6. Where such a direction is given the Supreme
Court would hear the rule nisi without the person detained
being brought before it and, as provided in O. XXXV, r. 5
"If no cause is shown or if cause is shown and disallowed"
pass an order that the person detained be set at liberty and
"if cause is shown and allowed" discharge the rule nisi.
[634-G-H: 635 A-B]
(4)Though the petitioner had a fundamental right under
Art. 3 and the SupremeCourt is bound under Art. 32(2) to
issue appropriate direction, order or writfor enforcement
of such fundamental right, there is so obligation on it to
14-L382SupCI/74
622
give any particular kind of remedy to the. petitioner. What
should be the appropriate remedy to be given is a matter for
the Court to decide under Art. 32(2). In cases of this
nature the Court may say that it is not necessary for the
petitioner to be produced before the Court and that it would
be sufficient and appropriate instead to examine the
validity of the detention without having him brought before
the Court, and if. the detention is found to be lawful, pass
’an order setting him at liberty. [635 C-D]
[Nature and history of the writ of habeas corpus examined]
JUDGMENT:
ORIGINAL JURISDICTION : Writ Petition No. 205 of 1973.
Under Article 32 of the Constitution of India for issue of a
writ in the nature of habeas corpus.
R. K. Garg, for the petitioner.
P. K. Chatterjee and G. S. Chatterjee, for respondents
Nos. 1 and 5.
P.Rain Reddy and P. P. Rao, for respondent No. 6 and for the
State of Andhra Pradesh.
B. D. Sharma and S. P. Nayar, for respondent No. 7.
The Judgment of the Court was delivered by
BHAGWATI, J. The short question that arises for determina-
tion in this petition under Art. 32 of the Constitution is
whether the production of the body of the person alleged to
be unlawfully detained is essential before an application
for a writ of habeas corpus can be finally heard and
disposed of by the Court. The question is of some
importance, affecting as it does the practice and procedure
to be followed in an application for a writ which has come
to be universally recognised as the most effective
protection invented by Anglo Saxon jurisprudence against
wrongful deprivation of personal. liberty. It is not
necessary for a proper determination of the question to
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recount the facts 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
the learned Vacation Judge, Mr. Garg , appearing on behalf
of the petitioner, raised a contention that the petition
could not be heard by the
623
Court unless the petitioner was produced in person and in
support of this contention he relied on Order XXXV, r. 4 of
the Supreme Court Rules, 1966. The learned Vacation Judge
felt that the question raised by Mr. Garg was an important
one and it should be decided after hearing the State of
Andhra Pradesh since it was that State which was holding the
petitioner in custody in the Central Jail, Visakhapatnam,
and he accordingly directed notice to be given to the State
of- Andhra Pradesh. The State of Andhra Pradesh filed an
affidavit in reply and appeared at the hearing of the
petition before a Division Bench of this Court on 25th July,
1973. The Division Bench took the view that the contention
raised by Mr. Garg that the nonproduction of the petitioner
in an application for a writ of habeas corpus is violative
of his rights under Art. 32 of the Constitution was one
required to be decided by the Constitution Bench and that is
how the matter is now before us for determination of this
contention.
The argument urged by Mr. Garg on behalf of the, petitioner
in support of his contention proceeded on the following
lines. Mr. Garg contended that the case of the petitioner
was that he was unlawfully, confined in jail in
contravention of Art. 21 and he was, therefore, entitled
under Art. 32 to move the Supreme Court for a writ of habeas
corpus to enforce, the fundamental right of personal freedom
guaranteed to him under Art. 21. The right to obtain relief
by way of a writ of habeas corpus was, according to Mr.
Garg, a fundamental right of the petitioner and since the
production of the body of the person alleged to be illegally
detained is an essential feature of writ of habeas corpus,
the petitioner was entitled to claim that he should be
produced before the Court before his petition for a writ of
habeas corpus could be disposed of by the Court. It was
conceded by Mr. Garg that if no prima facie case is shown by
the petitioner that he is unlawfully detained, the petition
may be dismissed in limine. But he contended that if a
prima facie ground is shown and a rule nisi is issued, the
body of the person alleged to be wrongfully confined must be
produced along with the return. The Court cannot, it was
said, proceed to inquire into the legality of the detention
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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 pro-
duction 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
624
rule nisi shall issue calling upon the person’ or persons
against whom the order is sought, to appear on a day to be
named therein to show cause why such order should not be,
made and at the same time to produce in Court the body of
the person or persons alleged to be illegally or improperly
detained then and there to be dealt with according to law."
The rule nisi contemplated in O. XXXV, r. 4, said Mr. Garg,
is nothing but the writ of habeas corpus which issues when a
prima facie case is made out by the petitioner and it
requires the respondent to produce in Court the body of the
person alleged to be wrongfully detained. Order XXXV, r. 5
lays down the procedure to be followed at the hearing of the
rule nisi and that is the same procedure which is followed
on the return to the writ of habeas corpus. That procedure
is, to quote O. XXXV, r. 5 :
"On the return day of such rule or any day to
which the hearing thereof may be adjourned if
no cause is shown or if cause is shown and
disallowed, the Court shall pass an order that
the person or persons improperly detained
shall be set at liberty. If cause is shown
and allowed, the rule shall be discharged.
The order for release made by the Court, shall
be a sufficient warrant to any gaoler, public
official, or other person for the release of
the person under restraint."
Mr. Garg had to concede that O. XLVII, r. 1 gives dispensing
power to the Court, for sufficient cause shown, to "excuse
the parties from compliance with any of the requirements of
these rules" and to "give such directions in matters of
practice and procedure as it may consider just and
expedient" and O. XLVII, r. 6 enacts an overriding provision
that nothing in the rules "shall be deemed to limit or
otherwise affect the inherent powers of the Court to make
such orders as may be necessary for the ends of justice or
to prevent abuse of the process of the Court", but his
argument was that production of the body of the person
alleged to be wrongfully restrained being an essential
feature of a writ of habeas corpus and the right to obtain a
writ of habeas corpus being a fundamental right of the
petitioner, it would be a part of the fundamental right of
the petitioner to insist that he should be produced in
person before the Court and O. XLVII, rr. 1 and 6 cannot be
read so as to curtail or limit this fundamental right. No
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rules can be framed by the Court, contended Mr. Garg, which
would destroy the basic and essential feature 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
625
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(1) as "a writ antecedent to statute, and
throwing its roots deep into the genius of our common law."
Originally, in its earliest period, during the twelfth and
thirteenth centuries the writ of habeas corpus was used in
mesne process and it was merely a command by the court to
some one to bring before itself the body of a person whose
presence was required for purpose of a judicial proceeding.
This simple character of the writ as a special kind of
summons remained unaltered till the first decades of the
fourteenth century. Pursuant to the writ, parties were
brought before the Court, whether such parties were free or
in detention, at the time of the issuance of the writ. When
the ’body’ named in the writ was delivered to the court, the
duties of the Sheriff or other directed person were at an
end. Until this time there was no mention in the writ of
production accompanied by a statement as to the cause of
detention. Indeed, in most cases, the writ was aimed at
persons not in custody but at large. But obviously a writ
by which a court could bring persons before it can be used
for many different purposes and the genius of the English
people found a way of using it for a different end. The
courts of common law started using the writ of habeas corpus
for extending their jurisdiction at the expense of the rival
courts. The writ of habeas corpus cum causa made its
appearance in the early years of the fourteenth century. it
not merely commanded the Sheriff to ’have the body’ of the
person therein mentioned like its predecessor but added the
words ’with the cause of the arrest and detention’. The
person who had the custody of a prisoner was required by
this writ to produce him before the Court together with the
ground for the detention. The writ thus became a means of
testing the legality of the detention and in this form it
may be regarded as the immediate ancestor of the modem writ
of habeas corpus. The writ of habeas corpus cum causa was
utilised by the common law courts during the fifteenth
century as an accomplishment of the writs of certiorari and
privilege to assert their jurisdiction against the local and
franchise courts. But towards the end of the fifteenth
century the machinery of the writ of habeas corpus cum causa
was turned to a new use. The courts of common law started
asserting their jurisdiction against the rival central
courts such as the Chancery, the Exchequer, the
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Ecclesiastical 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 follow-
(1) [1923] A. C. 603.
626
ing 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 process of some rival
tribunal."
The common law courts thus used the writ of habeas corpus to
protect, assert and extend their own jurisdiction against
the various rival courts by securing the release of
litigants and others from custody. By means of this writ
they brought before themselves and released persons who had
been imprisoned by one of the rival courts if.’ in their
opinion, the court had acted in excess of its jurisdiction.
The writ of habeas corpus, known in this form as habeas
corpus ad subliciandum, thus came to be a writ by which a
person unlawfully imprisoned could secure his release. In
this way it assumed great constitutional importance as a
device for impugning the validity of arbitrary imprisonment
by the executive and, as pointed out by Holdsworth in vol.
1 of his "History of English Law...... its position as the
most efficient protector of the liberty of the subject was
unquestioned after the Great Rebellion". It was for this
reason that men began to assign as its direct ancestor the
clauses of the Magna Carta which prohibited imprisonment
without due process of law. The history of the writ which
we have given shows that there is no direct descent but
there can be no doubt that there is an indirect connection
between the writ and the Magna Carta, because, far more
effectively than any other remedy, the writ helped to
vindicate the right of freedom guaranteed by the famous
words of the Magna Carta. The decision in Darnel’s case(1)
was a set-back in the struggle for liberty since it eroded
to some extent the effectiveness of the writ by taking the
view that a return that the arrest was "by the special
command of the King" was a good and sufficient return to the
writ, which meant that a lawful cause of imprisonment was
shown. But the Petition of Right, 1627 overruled this
decision by declaring such a case of imprisonment to be
unlawful. In the same way, it was enacted in the Habeas
Corpus Act, 1640 abolishing the Star Chamber that any person
committed or imprisoned by order of the Star Chamber or
similar bodies or by the command of the King or of the
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Council should have his habeas corpus. There were various
other defects also which were revealed in course of time and
with a view to remedying those defects
(1)(1627) 3 State Trials 1.
627
and making the writ more efficient as, an instrument of
securing the liberty of the subject unlawfully detained,
reforms 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,(1) 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, but
the production of the body of the person detained is
directed in order that the circumstances of his detention
may be inquired into, or to put it differently, "in order
that appropriate judgment be rendered on judicial enquiry
into the alleged unlawful restraint". The form of the writ
employed is "We command you that you have in the King’s
Bench Division of our High Court of Justice-immediately
after the receipt of this our writ, the body of A.B. being
taken and detained under your custodytogether with the day
and cause of his being taken and detained-to undergo and
receive all and singular such matters and things as our
court shall then and there consider of concerning hint in
this behalf". The underlined words show that the writ is
primarily designed to give a person restrained of his
liberty a speedy and effective remedy for having the
legality of his detention enquired into and determined and
if the, detention is found to be unlawful, having himself
discharged and freed from such restraint. The most
characteristic element of the writ is its peremptoriness
and, as pointed out by Lord Halsbury, L.C., in Cox v.
Hakes,(1) "the essential and leading theory of the whole
procedure is the immediate determination of the right to the
applicant’s freedom" and his release, if the detention is
found to be unlawful. That is the primary purpose of the
writ; that is its substance and end. The production of the
body of the person alleged to be wrongfully detained is
ancillary to this main purpose of the writ. It is merely a
means for achieving the end which is to secure the liberty
of the subject illegally detained. In the early days of
development of the writ, as pointed out above, the
production of the body of the person alleged to be
wrongfully detained was essential, because that was the only
way in which the courts of common law could assert their
jurisdiction by removing parties from the control of the
rival courts and thereby impairing the power of the rival
(1) [1890] 15 A. C. 506.
628
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courts to deal with the causes and persons before them. The
common law courts could not effectively order release of the
persons unlawfully imprisoned by order of rival courts
without securing the presence of such persons before them
and taking them under custody and control. But the
circumstances have changed long since and it is no longer
necessary to have the body of the person alleged 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 pro-
duced 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 form at the
expense of substance ? Why should we hold ourselves is,
fetters by a practice which originated in England about
three hundred years ago an account of certain historical
circumstances which have ceased to be valid even in that
country and which have certainly no relevance in ours ? But
we may point out that even in England it is no longer
regarded as necessary to order production of the body of the
person alleged to be. wrongfully detained, in an application
for a writ of habeas corpus.
In England it is well settled as a result of several
decisions that the writ of habeas corpus is not granted as
of course as would an original writ for initiating an
action. It is issued only on probable cause being shown by
an affidavit either of the person detained or of some other
person on his behalf. The applicant for the writ must show
prima facie that he is unlawfully detained. If he cannot
show prima facie that there is sufficient ground for his
discharge the writ would not issue and his application would
be summarily rejected. Now, up to the end of the eighteenth
century the procedure that was followed in application for
the writ of habeas corpus was that when the applicant made
out a prima facie case of an unlawful detention he would be
entitled to issuance of the writ as of right. In obedience
to the writ the respondent would produce the person detained
before the court and file a return showing the cause of
detention. At the hearing on the date named oral argument
would take place, the burden of proving lawful Justification
for the detention being on the respondent. If no legal
ground was made to appear justifying detention, the person
detained would be immediately discharged. On the other
hand. the application would be dismissed if the detention
was shown to be justified. But this procedure led to the
inconvenience of unnecessarily
629
bringing up the body of the person detained, sometimes from
a distance in case where it might ultimately be found, when
correct facts are placed before the court by tile respondent
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in tile return filed by him that the detention was perfectly
lawful and the applicant had it(-, case at all and the writ
need not have issued. The practice., therefore, started-it
is difficult to say precisely when, but the earliest
reported instance of it is to be found in the year 1784
(see, Wade’s case reported in the note to Blake’s case(1)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 me-an 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 (2) 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, when he can even otherwise be
effectively released without requiring such production. In
fact in many cases the person detained would be able to
obtain his actual release much earlier if an order of
release were passed by the court on the hearing of the rule
nisi than he would be able to obtain if a writ is issued, he
is produced before the court on the day named in the writ
and an order of release is passed on that day. The practice
was, therefore, adopted not to go through the formality of
the writ but to straight away order the release of the
person detained. if, on the hearing of the rule nisi, it was
found that the detention was unlawful. In Eggington’s
case(3) on an application made by one J. Grey for a writ of
habeas corpus to secure the release of Alfre Eggington
alleged to be unlawfully detained a rule was issued by the
court calling on the respondent to show cause why a writ of
habeas corpus should not issue directed to the keeper of the
jail at Stafford commanding him to have the body of Alfred
Eggington before the court immediately to undergo and
receive etc. and why in the event of the rule being made
absolute, Alfred Eggington should not be discharged out of
the custody of the said keeper without the writ actually
issuing or Alfred Eggington being personally brought before
the court. The respondent raised an objection that the rule
could not be issued in this form. Lord Campbell negatived
the objection stating "I have repeatedly granted it-in this
form-in order to avoid the necessity of bringing up the
party". So also in Geswood’s Case(4) tile
(1) 2 M. &. S. 428.
(2) [1941] 2 K B. 239.
(3)2E.L. & B. D.L.717=119F.R.936.
(4)2E.L.& B.L.952 118R.B.1222.
630
same kind of rule was issued by the court and the cause of
detention shown in the return being insufficient the court
made the "rule absolute to discharge the prisoner". This
practice found recognition in the Crown Office Rules, 1886
which were made under the Judicature Act, 1875 to govern the
practice and procedure on the Crown Side of the King’s Bench
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Division. We need not refer to the specific provisions of
the Crown Office Rules, 1886 relating to application for a
writ of habeas corpus, because they were identical with the
corresponding provisions of the Crown Office Rules, 1906
which superseded the Crown Office Rules, 1886. Speaking of
an application for a writ of habeas corpus, rules 217 and
218 of the Crown Office Rules, 1906 provided :
"R. 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 him first brought
before the Court, and rule 244 of the Crown Office Rules,
1886, corresponding to rule 225 of the Crown Office Rules,
1906 which gave sanction to such a course, was ultra vires.
Lord Herschell repelled this contention pointing out that
the respondent had failed to satisfy him that the rule was
ultra vires and that there was nothing to show that the
presence of the "person whose custody was in question was
essential to the jurisdiction of the High Court to discharge
him". The Crown Office Rules, 1906 were revoked and so far
as they related to the practice and procedure in regard to
application for a writ of habeas corpus, they were
incorporated in Order LIX as rule I clause (c) and rules 14
to 23 by the Rules of the Supreme Court (Divisional Courts)
1938. No substantial change was made in the practice and
procedure save and except that instead of rule nisi nd order
nisi, the new rules provided that when an application for a
writ is made and prima facie grounds are shown, the court or
Judge may direct that notice of motion be given or summons
be taken out for issuance of the writ or the application be
adjourned so that notice
631
thereof may be- given to the respondent. (see r. 16). Rule
19 corresponded to former r. 225 and was almost in the same
terms as that rule with only some minor consequential
changes. The entire rules of the Supreme Court were
thereafter revised and rewritten and passed and issued as
one complete integral body of Rules under the title "The
Rules of the Supreme Court, 1965". These are the Rules now
in force in England. Order LIV of these Rules embodies the
rule relating to application for a writ of habeas corpus.
Here again we do not find any substantial change and the
practice and procedure remains basically the same as it was
before. Rule 4(1) is in almost identical terms as the
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earlier r. 19 and provides that where the court or the judge
hears the application after notice of motion or summons or
notice of the application is served on the respondent, the
court or the judge may in its or his discretion order that
the person restrained be released and such order shall be a
sufficient warrant to any governor of a prison, constable or
other person for the, release of a person in restraint. The
editors of the Supreme Court Practice commenting on this
rule say at page 765 :
"At the hearing an order may be made for the
writ to 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
superfluity of issuing the writ has been discarded and a
pragmatic approach has been adopted which is concerned ’more
with the substance of the remedy than its form.
We find that in the United States also the same practice, is
followed in an application for a writ of habeas corpus. The
earliest case on the point is to be found in Exparte Tobias
Watkins.(1) In this case on an application for a writ of
habeas corpus, a rule was served on the
(1)(1833) 7 pet. (U. S.) 568; 8 L. Ed. 786.
632
Attorney-General to show cause why the, application should
not be granted and the cause was fully argued upon the
return of the rule The Court delivering its judgment said :
"It is admitted that all the facts existing in the case have
been laid before the court exactly .is they would appear if
the habeas corpus had been duly awarded and returned; so
that the judgment which the courts are called upon to
pronounce, is precisely that which ought to be pronounced
upon a full hearing upon the return to the writ of habeas
corpus and it has accordingly been so argued at the bar",
and held that the applicant was entitled to be discharged
from confinement. Similarly in Exparte Yarbrough(1) a writ
of habeas corpus was prayed for on the ground that the
applicant’s trial, conviction and sentence in the Circuit
Court of the United States for the District of Alabama were
illegal, null and void. The Supreme Court issued a rule
nisi to show cause why the writ of habeas corpus should not
issue for the release of the detenu. The Superintendent of
Alabama Penitentiary filed a return showing that the
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applicants were held prisoners by virtue of the sentence of
the Circuit Court on the hearing of the rule proceeded to
examine whether the detention of the applicants was lawful.
The Supreme Court did not say that until the applicants are
produced before them, they would not be competent to inquire
into and determine the legality of the detention. The
Supreme Court, on the contrary, said : "As this return is
precisely the same that the Superintendent would make if the
writ of habeas corpus had been served on him, the Court here
can determine the right of the prisoners to be released on
this rule to show cause, as correctly and with more
convenience in the administration of justice, than if the
prisoners were present under the writ in the custody of the
Superintendent," and pointed 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 :(2)
"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 rule nisi, the
legality, of the detention is inquired into and determined
without requiring the production of the prisoner detained,
and if the production is found unlawful, an order of
discharge is made sometimes accompanied by all order for
issue of a writ of habeas corpus and sometimes without it.
The issue of the writ of habeas corpus is, of-course, an
idle formality,
(1) (1884) 110 U. S. 651; 28 L. Ed. 274.
(2) 312 U. S. 275; 85 L. Ed. 830.
633
for, if the person detained is set free in compliance with
the order of release, there can be no return to the writ.
We find an accurate summary of the legal position set out in
Corpus Juris Secundum, vol. 39, page 659, para 93 :
"In general the body of the person detained
must be produced with the writ; but production
in court of the person detained is not a
prerequisite to jurisdiction and in a proper
case may be excused or dispensed with.
In accordance with the command of the writ,
and the governing statutes, the body of the
person detained must be produced with the
return before the court or judge issuing the
writ. Production in court of the person
detained is not a prerequisite to the
jurisdiction of the court to determine the
question involved. He need not be produced
unless the court deems his presence necessary.
Production of the prisoner bodily may be
excused or dispensed with where it appears
that for any reason the production of the body
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is impossible, impracticable, or improper,-"
The practice followed in the United States of releasing a
person found to be illegally detained without requiring him
to be brought before the Court disloses a pragmatic approach
to the problem, for, it concerns itself more with the
accomplishment of the primary purpose of the proceeding than
with compliance with its superfluous element.
This was the practice and procedure in an application for a
writ of habeas corpus and this is how the jurisdiction in
regard to writ of habeas corpus was exercised by the courts
in England as well as in United States when the Constitution
makers framed Art. 32 of the Constitution. It is,
therefore, reasonable to assume that when the Constitution
makers provided in Art. 32(2) that the Supreme Court shall
have power inter alia to issue a writ in the nature of
habeas corpus, they had in mind the writ of habeas corpus as
administered in England and the United States at that time.
The Constitution makers could never have intended that while
dealing with an application 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
634
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 procedure and pay homage to a superfluity
which has been discarded a long ago in those, two countries.
Why, should the ghost of the past and that too not ours but
that of another country-be allowed to continue to haunt us
and cloud our vision of rationality. It has been held by
this Court in T. C. Basappa v. T. Nagappa & Anr. (1) that
"in view of the express provisions in our Constitution we
need not now look back to the early history or the
procedural technicalities of these writs in English law, nor
feel oppressed by any difference or change of opinion
expressed in particular cases by English Judges. We can
make an order or issue a writ in the nature of dertiorari in
all appropriate cases and in appropriate manner, so long as
we keep to the broad and fundamental principles that
regulate the exercise of jurisdiction in the matter of
granting such writs in English law." (the underlining is
ours) When we find, both on a priori reasoning as also on
the basis of the practice in England and the United States,
that the production of the body of the person detained is
not a basic or essential requirement of a proceeding for a
writ of habeas corpus-it is a superfluous element which can
be discarded without effecting the utility, and effec-
tiveness of the remedy-there is no reason or justification
why we should insist upon it while- dealing with an
application for a writ of habeas corpus. The broad and
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general principles that regulate the exercise of
jurisdiction to issue a writ of habeas corpus in English law
have been discussed by us and they do not require that the
body of’ the person detained must be produced before the
legality of the detention can be inquired into and
determined by the court. We must, therefore, hold that
while dealing with an application for a writ of habeas
corpus under Art. 32, the Supreme Court may not require the
body of the person detained to be brought before the Court.
The production of the body of the person detained is not
essential to the jurisdiction of the Supreme Court to deal
with the application. The Supreme Court can examine the
legality of the detention on the hearing of the rule nisi
without requiring that the person detained be brought before
the Court, and if the detention is found unlawful, order him
to be released forthwith. This, in fact, is the procedure,
set out in order XXXV, Tr. 4 & 5 read with Order Y.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,
(1) [1955] S. C. R. 250.
635
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 Order XXXV, r. 5, "if no cause is shown or if cause is
shown and disallowed" pass an order that the person detained
be set at liberty, and "if cause is shown and allowed"
discharge the rule nisi. That would be exactly in accord
with the manner in which the jurisdiction in regard to an
application for a writ of habeas corpus is exercised in
England and the United States. We fail to see how that can
be regarded as in any way contradictory or violative of Art.
32 of the Constitution. Moreover, it may be noticed that
though the petitioner has a fundamental right under Art.
32(1) to move the Supreme Court by appropriate proceeding
for enforcement of any of his fundamental rights guaranteed
under Part III and the Supreme Court is bound under Art.
32(2) to issue appropriate direction order or writ for
enforcement of such fundamental right, there is no
obligation on the Supreme Court to give any particular kind
of remedy to the Petitioner. What should be the appropriate
remedy to be given to the petitioner for enforcement of the
fundamental right sought to be vindicated by him is a matter
for the Supreme Court to decide under Art. 32(2). The
Supreme Court may, in the exercise of its power under Art.
32(2), say that in order to give relief to the person
detained for enforcement of Ms personal freedom, it is not
necessary to go through the idle formality of requiring him
to be produced before the Court and that it would be
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sufficient and appropriate instead to examine the validity
of the detention without having being brought before the
Court, and if the detention is found to be unlawful, pass an
order setting him at liberty.
We are, therefore, of the view that there is nothing in.
Art. 32 which requires that the body of the person detained
must be produced be-fore an application for a writ of habeas
corpus can be heard and decided by the Court. It is
competent to the Court to dispense with the production of
the body of the person detained while issuing a rule nisi
under Order XXXV, r. 4 and the rule nisi can be heard and an
appropriate order passed in terms of Order XXXV, r. 5
without requiring the, body of the person detained to be
brought before the Court. This was the only question before
us and now that it is deter mined the petition will have to
go back to the appropriate Bench for disposal according to
law.
P.B.R.
636