Volume No. :   5

Issue No. :  1

Year :  2014

ISSN Print :  2321-5828

ISSN Online :  0975-6795


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Writ of Habeas Corpus: Meaning and Drafting

Address:   Muhammad Riyazul Ameen Memon
Final Year Student, Hidayatullah National Law University, Raipur
*Corresponding Author: .

“Habeas corpus” is a Latin term. It means ‘have the body’, ‘have his body’ or ‘bring the body’. By the writ of Habeas corpus, the court directs the person (or authority) who has arrested, detained or imprisoned another to produce the latter before it (court) in order to let the court know on what ground he has been arrested, detained, imprisoned or confined and to set him free if there is no legal justification for the arrest, detention, imprisonment or confinement.1 It is a writ to a jailer to produce a prisoner in person, and to state the reasons of detention.2 The main objective behind it is to provide effective remedy against illegal detention & to release a person from it. An illegally detained person may apply for the Habeas Corpus. Any other person may also apply on behalf of prisoner against the person or authority who has illegally detained or arrested the prisoner. The Indian judiciary in a catena of cases has efficiently resorted to the writ of habeas corpus mainly in order to secure release of a person from illegal detention. Personal liberty has always been considered a cherished value in India & the writ of habeas corpus protects that personal liberty in case of illegal arrest or detention. As personal liberty is so important, the judiciary has dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The judiciary while going one step further, has also dispensed with strict rules of pleadings. In Kanu Sanyal v. District Magistrate3, while enunciating the real scope of writ of habeas corpus, the Supreme Court opined that while dealing with a petition for writ of habeas corpus, the court may examine the legality of the detention without requiring the person detained to be produced before it. Also, in Sheela Barse v. State of Maharashtra4, while relaxing the traditional doctrine of locus standi, the apex court held that if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf. Habeas corpus petition may be filed for release from illegal custody of any person detained either by a State mechanism or by a private individual. Normally no such petition lies in respect of detention in prison in execution of a sentence passed and conviction ordered by a Criminal Court even though the conviction may be against the weight of evidence on the record or may be based on a wrong interpretation of law. In such cases the remedy of appeal or revision under the Code of Criminal Procedure or other similar Procedure or other similar law should be availed. The High Court has also inherent power under section 482 Cr. P.C. to grant redress with a few to preventing abuse of process of Court even where no appeal or revision lies. Likewise, the legality or correctness of a conviction and sentence by a Court Martial under the Army Act, the Air Force Act or the Navy Act cannot be challenged through a habeas corpus petition.
Writ of Habeas Corpus: Meaning and Drafting
Muhammad Riyazul Ameen Memon. Writ of Habeas Corpus: Meaning and Drafting. Research J. Humanities and Social Sciences. 5(1): January-March, 2014, 53-55.
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