February 8, 2023

Kanu Sanyal vs District Magistrate Darjeeling (1973)- A case on Habeas Corpus

The question that arose in this petition under Article 32 of the Constitution was 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 case

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 petitioner’s counsel, 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.

And, 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 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.

The writ of Habeas corpus in Criminal Procedure Code

The petitioner’s counsel relied on the following provision of the CrPC-

Order XXXV, r. 4,

“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 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 counsel, 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.”

Analysis of the court

The ‘Habeas Corpus’ writ 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 most characteristic element of the writ is its peremptoriness and, as pointed out by Lord Halsbury, L.C., in Cox v. Hakes, ([1890] 15 A. C. 506.) “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.

The question of production of body

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 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 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.

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 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 the respondent in the return filed by him that the detention was perfectly lawful.

Decision of the court

The supreme court held 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.

Reference

Kanu Sanyal v. District Magistrate Darjeeling, (1973)