KANU SANYAL Vs. DISTRICT MAGISTRATE DARJEELING

JUDGEMENT

(1.) The short question that arises for determination in this petition under Art.. 32 of the Constitution is 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 question is of some importance, affecting as it does the practice and procedure to be followed in an application for a writ which has come to be universally recognised as the most effective protection invented by Anglo Saxon jurisprudence against wrongful deprivation of personal liberty. It is not necessary for a proper determination of the question to recount the facts giving rise to the petition. Nor is it necessary to set the grounds on which the petitioner contends that he has been illegally restrained of liberty. It would be sufficient to state that the petitioner filed the petition for a writ of habeas corpus contending that he has been wrongfully deprived of liberty and that he should be released forthwith from his confinement. The petition was forwarded to this Court by the petitioner from the Central Jail. Visakhapatnam where he is detained as an under trial prisoner pursuant to the remand granted form time to time by the special Magistrate, Visakhapatnam before whom committal proceedings are pending against him in PRC Nos. 1 and 2 of 1971. When the petition came up for preliminary hearing on 2nd April, 1973, Mr. Garg appeared on behalf of the petitioner with the permission of the Court, and after hearing him the Court made an order for the issue of rule nisi, but directed that there should be no personal production for the present. Three affidavits in reply were filed in answer to the rule nisi, one by respondents Nos. 1 and 5, the othere by respondent No. 6 and the third by respondent No. 7. When the peition reached hearing before the learned Vacation Judge, Mr. Garg. Appearing on behalf of the petitioner, raised a contention that the petition could not be heard by the Court unless the petitioner was produced in person and in support of this contention he relied on Order XXXV, rule 4 of the Supreme Court Rules, 1966. The learned Vacation Jude felt that the question raised by MR. Garg was an important one and it should be decided after hearing the State of Andhra Pradesh since it was that state which was holding the petitioner in custody in the Central Jail, Visakhapatnam, and he accordingly directed notice to be given to the State of Andhra Pradesh. The State of Andhra Pradesh filed an afidavit in reply and appeared at the hearing of the petition before a Division Bench of this Court on 25th July, 1973. The Division Bench took the view that the non-production of the petitioner in an aplication for a writ of habeas corpus is violative of his rights under Article 32 of the Constitution was one required to be decided by the Constitution Bench and that is how the matter is now before us for determination of this contention.

(2.) The argument urged by Mr. Garg on behalf of the petitioner in support of his contention proceeded on the following lines. Mr. Garg contended that the case of the petitioner was that he was unlawfully confined in jail in contravention of Article 21 and he was, therefore, entitled under Article 32 to move the Suprmemt 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 Mr. Garg. 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 a writ of habeas corpus, the petitioner was entitled to claim that he should be produced before the Court before his petion for a writ of habeas corpus could be disposed of by the Court It was conceded by Mr. Garg that 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, proceeds 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 it would be some other relief 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. Mr. Garg relied heavily on O. XXXV, R. 4. which is in the following terms:

(3.) We do not think this submission is well founded. It proceeds on a misapprehension of what are the basic and essential features of a writ of habeas corpus as it has developed over the centuries in the country of its origin and as it is administered in the countries governed by AngloSaxon jurisprudence. The writ of habeas corpus is one of the most ancient writs known to the common law of England. It is a writ of immemorial antiquity and the first threads of its origin are woven deeply within the "seamless web of history" and they are concealed and perhaps untraceable among countless incidents that constituted the total historical pattern. Earl of Birkenhead described it in his speech in the Secretary of State v. O'Brien, 1923 AC 603 as "a writ antecedent to statute, and throwing its roots deep into the genius of our common law." Originally, in its earliest period during the twelfth and thirteenth centuries the writ of habeas corpus was used in mesne process and it was merely a command by the court to some one to bring before itself the body of a person whose presence was required for the purpose of a judicial proceeding. This simple character of the writ as a special kind of summons remained unaltered till the first decades of the fourteenth century. Pursuant to the writ, parties were brought before the Court, whether such parties were free or in detention, at the time of the issuance of the writ. When the 'body' named in the writ was delivered to the court the duties of the Sheriff or other directed person were at an end. Until this time there was no mention in the writ of production accompanied by a statement as to the cause of detention. Indeed, in most cases, the writ was aimed at persons not in custody but at large. But obviously a writ by which a court could bring persons before it can be used for many different purposes and the genius of the English people found a way of using it for a different end. The courts of common law started using the writ of habeas corpus for extending their jurisdiction at the expense of the rival courts. The writ of habeas corpus cum cause made its appearance in the early years of the fourteenth century. It not merely commanded the Sheriff to 'have the body' of the person therein mentioned like its predecessor but added the words 'with the cause of the arrest and detention.' The person who had the custody of a prisoner was required by this writ to produce him before the Court together with the ground for the detention. The writ thus became a means of testing the legality of the detention and in this form it may be regarded as the immediate ancestor of the modern writ of habeas corpus. The writ of habeas corpus cum causa was utilised by the common law courts during the fifteenth century as an accompaniment of the writs of certiorari and privilege to assert their jurisdiction against the local and franchise courts. But towards the end of the fifteenth century the machinery of the writ of habeas corpus cum causa was turned to a new use. The courts of common law started asserting their jurisdiction against the rival central courts such as the Chancery, the Exchequer the Ecclesiastical courts, the Council the Star Chamber, the Admiralty and the High Commission and in this struggle for supremacy between the combatant courts, the writ of habeas corpus cum causa came to be a most effective weapon in the hands of the common law courts. The reason why it became so may be explained by quoting the following passage from the article of Maxwell Cohen on "Habeas Corpus Cum Causa" in 18 Canadian. Bar Review at page 20: