Writ of Habeas Corpus
Habeas Corpus is a great prerogative writ issued by High Court against the illegal or unlawful confinement of a person in private or public custody. This writ is issued to a person who detains another in custody, commanding him to produce or “have the body” of that person before the court.
The constitution, of Pakistan 1973, provides the personal liberty as a fundamental right under Art 9 of it. Art 199 empowers the High Court to issue writ of Habeas corpus in case of violation of the right. Sec 491 Cr.P.C provides the powers to issue directions in the nature of Habeas corpus.
Relevant Sections
- Sec 491 Cr. P.C.
- Cross Reference. Art 4, 9, 199 of constitution of Pakistan, 1973
Meaning of Habeas Corpus
- Literal Meaning-The literal meaning of the term is “Have his body“
- Case Law Meaning– “Proceeding by way of Habeas Corpus are proceeding, calling upon a person having custody of another person to produce him and demonstrate, under what authority he holds him custody.” It was defined in the case titled Mst. Tauqir Fatima vs Iqbal Mehdi shah (1996)
Competency for Filing Application of Habeas Corpus
The below mentioned persons are competent to file application of Habeas Corpus in the court:-
- The person himself
- His close relative
- His advocate
However, it is pertinent to make a mention that a stranger can not file an application u/s 491 of Cr.P.C.
Power to Issue Directions of the Nature of Habeas Corpus
Any High Court may, whenever it thinks fit, issue directions within the limits of its appellate criminal jurisdiction under section 491 of Cr.P.C. The power given u/s 491 is discretionary in nature.
The power given u/s 491 Cr.P.C is wider in scope. High Court can give relief to the person improperly and illegally detained.
The expression improperly refers to cases where the forms of law have been observed but there has been some fraud or an abuse of powers by the detaining authority.
Nature of Jurisdiction
The Power granted to high court is discretionary in nature and a High Court exercises two-fold jurisdiction u/s 491 Cr.P.C :-
- To direct production of a person, who is illegally detained, so that to set him at liberty.
- To direct production of a person, so that he could be dealt in accordance with law.
Mode of Exercising Power
High Court can exercise power on either of the following ways.
- Suo Muto. The Court may initiate proceedings at its own to ensure that the person must not be illegally detained.
- On Application of Aggrieved Person. Under Article 199 of the constitution of Pak, 1973, there is no provision as to the person who may make an application, for an order of Habeas Corpus. As a general rule any person having special wrongfully detained may seek relief on his behalf.
Nature of proceedings
Proceedings u/s 491 Cr.P.C is of summary nature.
- Case Law – PLD 1994 SC 85
“Proceeding U/S 491 Cr.P.C by their very nature is summary in character and neither controversies are tried nor is entire evidence recorded under ordinary substantive and procedural laws”.
What Directions a High Court May Issue?
Following directions may be issued by the High Court u/s 491.
Person be Brought before The Court
The High Court may direct that a person within the limits of its appellate criminal jurisdiction be brought before the Court, to be dealt with accordance to law.
Person be set at Liberty
The High Court may direct that a person illegally or improperly detained in public or private custody within the limits of its appellate criminal jurisdiction, be set at liberty.
Person be Examined as Witness
High Court may direct, that a prisoner detained in any jail situate within the limits of its appellate criminal jurisdiction, be brought before the Court, to be there examined as a witness in any matter pending before such court or to be inquired into in such Court.
Prisoner be Brought Before Court Martial of any Commissioner
High Court may direct, that a prisoner, detained in any jail situate within the limits of its appellate criminal jurisdiction, be brought before the Court martial or any commissioner for trial or to be examined regarding stay matter pending before such Court martial or commissioner.
Transfer of Detenu from Jail
High Court may direct, that a prisoner within its appellate criminal jurisdiction, be removed from one custody to another for the purpose of trial.
Body of Defendant be Brought in on the Sheriff’s Return of CEPI Corpus
While executing a writ of attachment, sheriff take the body of defendant under his custody, than he is required to return the writ together with an endorsement, the he has take the defendant, this is called a return of Cepi corpus, and the High Court may direct that a body of defendant be brought in on the sheriffs return of Cepi corpus.
Exceptions to Habeas Corpus Proceedings
There are certain exceptions to the above mentioned power of the High Court. In specific circumstances, a writ of Habeas Corpus cannot be granted where:-
- Person is detained in accordance with law.
- The effect of writ would amount to review the judgment of one of the superior Courts.
- The person concerned is situated outside its appellate criminal jurisdiction limits.
Delegation of Powers by High Court
The High Court may, by general or special order published in official Gazette, direct that any of its powers specified in clause (a) (b) of sub-section (1) of sec 491 shall be exercisable also by
- Session Judge or
- Additional Session judge within the territorial limit of a session division.
From the the above discussion, we can conclude , that the underlying principle of every writ of Habeas corpus under this section is to ensure the protection and the well being of the person brought before the Court.
The provisions of this section do not give jurisdiction to the High court to review a conviction or sentence.
The provision of sec 491 Cr.P.C are wider than the provisions of sec 100 and sec 552 Cr.P.C as it refers to any person improperly and illegally detained.
