Key Takeaways
● Section 97, Cr. P. C. has become a dead letter," said Justice Dinesh Maheshwari.
● The petition is dismissed as withdrawn with liberty to the petitioner to take reasonable recourse as provided by statute," the bench said.
● Section 97 only applies to those who have been wrongfully imprisoned.
● A writ of habeas corpus is an order to the person who has detained another to bring the matter before the court in order to inform the court of the reason for his detention and to have him released if there is no legal basis for his detention.
● The Magistrate must be satisfied that an individual has been wrongfully detained before issuing a warrant under this provision.
Introduction
The Supreme Court on Tuesday urged a petitioner who had filed a habeas corpus petition under Article 32 against his wife's father's unlawful detention to use Section 97 of the Cr. P. C. (Search for persons wrongfully confined). "Because of these shortcuts, Section 97, Cr. P. C. has become a dead text," said Justice Dinesh Maheshwari.
It should be noted that Section 97 of the Act provides that if any District Magistrate, Sub-divisional Magistrate, or Magistrate of the First Class has reason to believe that any person is confined in such a way that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined, and such search shall entail a search of the person so confined.
Facts of the case
● A habeas corpus petition filed by a husband alleging his wife's wrongful detention was heard by the vacation bench of Justices Maheshwari and Aniruddha Bose.
● The appellant, who was 28 years old at the time, had married the corpus, who was 20 years old, in April of this year. It was said that after the corpus' family learned of the wedding, they have brutally beaten her and imprisoned her in a room at their home in order to prevent her from cohabiting with the petitioner in their matrimonial home.
● The petitioner tried to work out an amicable solution with his wife's relatives, but the respondent-father and his other family members issued life threats.
● The complainant also said that he had lodged a complaint with the jurisdictional SHO, but that no action had been taken by the police.
● Following that, the petitioner filed an online application with the Chief Minister of the state of Uttar Pradesh via the CM's 'Jan Sunwai Portal.'
● Left with no other option, the petitioner filed a writ petition under Article 32, requesting that the respondent-authorities produce his wife, who is unlawfully detained by the father at his home, before the Court.
● The petitioner said that he and the corpus are both majors who married without being forced and out of the free will after getting to know each other.
Order of the Court
● In the beginning, Justice Maheshwari enquired of the petitioner's lawyer, "You've made it under 32. Why is the High Court unqualified to hear this case? "
● "In view of the prevailing Covid condition in the state, the Allahabad High Court is providing hearing dates for after 3-4 months...the trial courts are also often not working," said the petitioner's lawyer. "So why can't you use section 97 of the Criminal Procedure Code? Courts have nothing to do with 97! ", Justice Maheshwari said.
● The bench then adjourned the case to give the lawyer time to review the relevant clause of the Cr. P. C. When the case was brought up again, the lawyer said that he had read Section 97.
● He also claimed that the petitioner had contacted the jurisdictional police station's SHO about the unlawful detention and had also filed an application with the state CM through his online portal.
● "We've seen it all—the letter to the CM, the letter to the SHO, and 32 is a definite no, why can't you go below 97? ", Justice Maheshwari suggested.
● "Then I request the liberty to withdraw this petition to go under 97," the lawyer said. "That's great! Because of these shortcuts, the number 97 has become a dead letter in the Code "Justice Maheshwari remarked. "The petition is dismissed as withdrawn with liberty to the petitioner to take reasonable recourse as provided by statute," the bench said.
Section 97 of the CrPC
● Section 97 only applies to those who have been wrongfully imprisoned. A search warrant can be issued by a District Magistrate, Sub-divisional Magistrate, or a Magistrate of the First Class for a person who is confined in such a way that the confinement amounts to an offence of unlawful confinement (Section 340, I.P.C.).
● As a result, the warrant issued under this provision is in the form of a writ of habeas corpus for the police to rescue a wrongfully incarcerated person pursuant to a Magistrate's order.
● The Magistrate must be satisfied that an individual has been wrongfully detained before issuing a warrant under this provision. This portion, however, does not contemplate a thorough investigation or documentation of findings in this regard. It also does not give the affected party the right to be heard until the Magistrate issues a search warrant.
● The provisions of Section 97 can be used by a father to free his married daughter from her in-laws' unjust imprisonment. When an individual is wrongfully imprisoned by gherao, a warrant under Section 97 may be released for his rescue by police action.
● In Ramesh v. Laxmi Bai, the Supreme Court ruled that the provisions of Section 97 do not apply to a mother's request for the search of her child son who was living with his own parent. This section is implied to cases where the person is or not a victim of kidnapping or abduction
● In Mohd Ikram v. the State of UP, the Supreme Court held that it is appropriate to involve the provision of this section in the cases of recovery of wife on an application by the husband where the question of fact mat is resolved after due inquiry.
● Section 97 requires the Magistrate to issue a search warrant that must have the reason to believe that after consideration of all the facts, the person confined under the situation amounts to the offence of wrongful confinement.
● A child in the lawful custody of her/his mother and the father of such child removed him by using physical force, from such custody, issues a warrant under Section 97 of the CrPC, will be justified.
● In Kulwant Kuar v. the State of Panjab, At the request of the man pretending to be her husband, a search warrant was released for the recovery of a woman. However, his assertion was found to be fraudulent, and the woman refused to visit her real husband because of his cruelty.
● Her incarceration in the State Protective Home was directed by the Magistrate. The High Court of Punjab and Haryana overturned the decision, ruling that the woman should be free to live wherever she pleased.
Writ of Habeas Corpus
● The term habeas corpus literally means "body" in Latin. A writ of habeas corpus is an order to the person who has detained another to bring the matter before the court in order to inform the court of the reason for his detention and to have him released if there is no legal basis for his detention.
● Habeas corpus is a writ that was envisioned as an effective way of providing rapid redress to a person who has lost his or her personal liberty for no legal reason. As a result, it cannot be used to file a complaint about past wrongful detention.
● However, the Indian Supreme Court has broadened its scope, and compensation is now being compensated not only for past unlawful arrest but also for loss of life. Initially, the state was asked to cover a portion of the prisoner's expenses. (Radul Shan v. the State of Bihar)
● In all cases of wrongful deprivation of personal liberty, the writ of habeas corpus is available as a remedy. It is a method of ensuring the subjects' liberty by providing an efficient means of obtaining immediate release from arbitrary or unjustifiable incarceration, whether in jail or in private custody. In the case of issuing a writ of habeas corpus, the Constitution gives the Supreme Court and all High Courts broad powers.
● The right to petition the Supreme Court under Article 32 for the protection of fundamental rights is a fundamental right in and of itself, whereas the right to petition a High Court under Article 226 is a statutory right.
● “The celebrated Writ of Habeas Corpus has been identified as a great constitutional right of the citizen' or ‘the first security of civil liberty,'” the Supreme Court said in Deepak Bajaj V. State of Maharashtra. Without a doubt, the Habeas Corpus remedy is a powerful tool provided by our Constitution for protecting the right to live in dignity and against illegal detentions, but can that constitutional remedy be used to circumvent the legal process prescribed by the Code of Criminal Procedure, and can a judicial order of custody be challenged by way of a writ of habeas corpus?
● Despite the fact that the law is well established, the exceptional innovations and invocation of various remedies by the famous TV Editor have necessitated a review of previous precedents.
● The Supreme Court ruled in Serious Fraud Investigation v. Rahul Modi that directing an accused's remand is a judicial feature and that a Habeas Corpus petition cannot be filed in such a case. The Supreme Court held in B. Ramachandra Rao v. State of Orissa (1972) 3 SCC 256 that when an individual is sentenced to jail custody by a competent court by judicial order, a writ of Habeas Corpus cannot be issued.
● In Manubhai Ratilal Patel v. the State of Gujarat, this Court held that "it is a well-accepted principle that a writ of Habeas Corpus is not to be entertained when an individual is committed to judicial or police custody by a competent court by an order having jurisdiction."
● The supreme court said in Saurabh Kumar v. Jailor, Koneila Jail that the writ of Habeas Corpus in cases of detention pursuant to a competent court's order of remand is totally misguided. The court also held that the remedy of a writ of Habeas Corpus was not considered to be an effective remedy in the case of an unconstitutional order of remand that was passed mechanically and in a cavalier manner. Filing a bail application is the only way to get out of this situation.
● In Jagdish Arora v. State of Uttar Pradesh, the Supreme Court noted in its short order that, while taking notice of the submission of the learned Additional Solicitor General for India that a writ of Habeas Corpus is not maintainable in light of the continuation of custody pursuant to the remand order, the court was not inclined to sit back on technical grounds.
● Thus, the Supreme Court, exercising its power under Article 142 of the Indian Constitution to do "full justice," ordered the immediate release of the individual detained, believing that the arrest for making a post/tweet on social media was unreasonable. It's worth noting that the order of release was issued under Article 142 of the Indian Constitution, rather than by granting the Habeas Corpus petition.
● Thus, the Supreme Court has consistently held that once the person arrested is brought before the competent court and the judicial process under the Code of Criminal Procedure begins, the remedy lies in challenging the subordinate court's order in the superior courts, rather than in circumventing the process through a writ of habeas corpus.
Conclusion
The "great and efficacious writ in all manner of unlawful detention" is the writ of habeas corpus. It's a summons that has the legal force of a court order; it's addressed to the custodian (for example, a prison official) and requests that a prisoner be brought before the court and that the custodian shows evidence of authority, enabling the court to decide if the custodian has legitimate authority to detain the prisoner. The inmate must be released if the custodian is behaving outside of their jurisdiction. Any inmate, or someone acting on their behalf, may request a writ of habeas corpus from the court or a judge.
On a series of occasions, the Indian judiciary has successfully used the writ of habeas corpus to ensure a person's release from unlawful detention. The Karnataka High Court, for example, heard a habeas corpus petition filed by the parents of a girl who married a Muslim boy from Kannur district and was reportedly imprisoned in a madrasa in Malapuram town in October 2009. The writ is usually aimed at police authorities in most other jurisdictions.
The 1898 Queen's Bench case of Ex Parte Daisy Hopkins, in which the Proctor of Cambridge University detained and arrested Hopkins without authority, and Hopkins was acquitted, and Somerset v Stewart, in which an African slave whose owner had relocated to London was freed by writ action.
The Indian judiciary has abolished the conventional doctrine of locus standi, allowing someone to file a petition on someone else's behalf if a detained individual is unable to do so. The Indian judiciary's decisions have recently broadened the reach of habeas relief.
The habeas writ was used in the Rajan case in 1976 when a student was tortured in local police custody during India's nationwide emergency. Subrata Roy's lawyer filed a habeas corpus petition with the Chief Justice on March 12, 2014. The Panthers Party also filed it in protest of Anna Hazare's incarceration as a social activist.
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