By Vijay Pal Dalmia, Advocate

Supreme Court of India & Delhi High Court

Email id: vpdalmia@vaishlaw.com

Mobile No.: +91 9810081079

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And Sarthak Saxena

mity Law School, Delhi

saxenasarthak@outlook.com

The Writ of Habeas Corpus is a common-law writ, issued by a
court or judge directing one who holds another in custody to
produce the person before the court for some specified purpose. It
is visualised as an effective means to provide a quick remedy to a
person who has lost his personal liberty without any legal
justification. Therefore, it cannot be used for complaining against
past illegal detention.

The issue of the misuse of the writ of habeas corpus came to the
forefront, when the Supreme Court, had to address the situation on
a recent case in which a petitioner filed a writ of habeas corpus
under Article 32 of the Constitution, against the illegal detention
of his wife by his family (in this case, the father), as against
filing a complaint under Section 97 of the Code of Criminal
Procedure. In this case, the Hon’ble Supreme Court observed
that “[Section] 97 has become a dead-letter in the Code
because of these short-cuts.”, meaning thereby that in the
habeas corpus matters the recourse has to be first taken under
Section 97 of Cr.P.C.

Section 97 Cr.P.C. states the following:

“Search for persons wrongfully confined.— If any
District Magistrate, Sub-divisional Magistrate or Magistrate of the
first class has reason to believe that any person is confined under
such circumstances 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 be made in accordance therewith, and the person, if found,
shall be immediately taken before a Magistrate, who shall make such
order as in the circumstances of the case seems
proper.”

In Marotrao S/O Shamrao Pachare & Ors. Vs. Sou. Usha
Marotrao Pachare¹ the Bombay High Court observed that:
“The action under section 97 is to meet emergency. A
reasonable belief by the Magistrate that the confinement of the
person concerned amounts to an offence is sinequanon for the
exercise of the jurisdiction under this section. Unless there is
material before the Magistrate and the Magistrate believes that the
confinement of the person concerned is an offence, the jurisdiction
under section 97 could not be exercised at all. Section 97 does not
authorise the Magistrate to go into the disputed questions as to
which of the claimants is entitled to custody of a minor. Such
question will always have to be left to the Civil Courts empowered
under the different statutes. It would be also beyond the scope of
jurisdiction of the Magistrate to assess the comparative merits and
demerits of the claim of a father and mother or other person
claiming the custody and to find out in whose custody the well
being of the minor is protected.”

In a separate decision, the Bombay High Court also held that
section does not impose any obligation on the Magistrate to hold a
detailed inquiry or to record such findings which are necessary
after adjudication or entitle the affected party to the right
to be heard before the Magistrate issues a
search-warrant.²

Similarly, in the case of Ammara Begum v. Habil Mea³,
(1962) 2 Cri LJ 159, it was held by the Gujarat High Court
that  “when the person concerned states before the
Magistrate that she was not wrongfully confined, but she was there
of her own accord, the Magistrate cannot thereafter give any
directions regarding the person’s custody.”

In Piyush Chamaria and Ors. v. Hemanta JitanI and
Ors.⁴ the Gauhati High Court, while dealing with the
rationale of applying under Section 97 of the Cr.P.C. in a case of
kidnapping of a minor, observed the following: “…what
Section 97 requires is “confinement” of a person, which
amounts to an offence… If a Magistrate is satisfied that a minor
has been wrongfully confined, it is his duty to issue search
warrant for recovery of such a child even from the custody of such
a person, who may hold the custody of the child innocently or
without knowing the reality.”

Footnotes

1. 2004 ALL MR (Cri) 443

2. Pravin Singh v. Biharilal Singh, 1989
Cri LJ (Bom) 1386.

3. (1962) 2 Cri LJ 159

4. Criminal Petition No. 257 of 2008

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