Jan 9, 2018
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What is Writ of Habeas corpus?

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What is Writ of Habeas corpus?

Habeas corpus means show the detained body. If a person wrongfully detained, then his relatives can file this writ with the High court. The court then orders, the police officer or the person who has the custody of that person, to present the detained person. Thereafter court examines the validity of the detention. If court thinks fit, may set the person free. Therefore, this writ treated as protection against wrongful detention or to life and liberty of person.  Such a writ can issued in following example cases When :

  • the person detained and not produced before the magistrate within 24 hours.
  • the person arrested without any violation of a law.
  • a person arrested under unconstitutional law.
  • detention done to harm the person or malafidely detained.

Thus, Habeas corpus writ protects the liberty of individual against arbitrary detention. The writ petition filled by a person whose right infringed. Habeas corpus writ is applicable to preventive detention also. This writ issued against both public authorities as well as individuals.

Grounds of Issuance of Habeas corpus

The following stated below are grounds for the grant of the writ of Habeas corpus :

1. The applicant must detained and in custody;

2. The writ of Habeas corpus can filled by the husband or wife or father or son of the detainee. Before, the writ of habeas corpus could not filled by strangers. But now the position of writ completely changed with the pronouncements of the Supreme Court in a number of cases. Even a postcard written by a detainee from jail or by some other person on his behalf inspired by social objectives could taken as a writ-petition.

3.  A person has to present the writ petition of Habeas corpus only to one judge of the court. Person has no right to present successive applications for habeas corpus to different Judges of the same court. The Supreme Court has granted an exception to the effect that where the petition had rejected by the High Court, a fresh petition filed to Supreme Court under Article 32.

4. All the formalities to arrest and detention have not followed by the authority.

5. The order to arrest has made malafiedly or for collateral purpose. When a Magistrate did not report the arrest to the Government of the Province as required under Section 3(2) of the Punjab Safety Act, 1947, the detention held illegal.

6) The order must contain defective substance, e.g., misdescription of detainee, failure to mention place of detention etc. Hence complete description of the detainee must contain in the order of detention.

7) It must be established that the detaining authority was not satisfied that the detainee was committing prejudicial acts, etc. It may be noted in this connection that the sufficiency of the material on which the satisfaction is based cannot be subject of scrutiny by the Court.

Delay In Furnishing Ground May Entitle Detainee To Released

The Court has shown great importance for personal liberty. It also refused to dismiss a petition merely on the ground that it does not disclose a prima facie case invalidating the order of detention. It has adopted the liberal attitude in view of the peculiar socio-economic conditions prevailing in the country. People in general are poor, illiterate and lack financial resources. It would therefore be not desirable to insist that the petitioner should set out clearly and specifically the ground on which he challenges the order of detention.


Article Categories:
Constitutional Law

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