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PETITIONER: KANU SANYAL

       Vs.

RESPONDENT: DISTRICT MAGISTRATE, DARJEEIJNG & ORS.

DATE OF JUDGMENT11/09/1973

BENCH: BHAGWATI, P.N. BENCH: BHAGWATI, P.N. SIKRI, S.M. (CJ) PALEKAR, D.G. CHANDRACHUD, Y.V. KRISHNAIYER, V.R.

CITATION:  1973 AIR 2684            1974 SCR  (1) 621  1973 SCC  (2) 674  CITATOR INFO :  E          1976 SC1207  (500)

ACT: Constitution of.  India, Art. 32-Habeas Corpus-O.XXXV, rr. 4 and  5  and O. XLYII. rr.  1 and 6 of Supreme  Court  Rules- Whether  Production  of the body of the  detenu  before  the Court  essential  for the disposal of the  petition  by  the Court.

HEADNOTE: The  petitioner,  an undertrial prisoner, filed  a  petition under  Art. 32 for the issue of writ of habeas corpus.   The Court issued rule nisi but directed that the petitioner need not be produced in person.  On the question whether the pro- duction  of  the body of the person detained  was  essential before the application for a writ of habeas corpus could  be finally heard and disposed of by the Court. HELD  : (1) There is nothing in Art. 32 which requires  that the  body of the person detained must be produced before  an application  for a writ of habeas corpus could be heard  and decided  by  the Court.  It is competent for  the  court  to dispense  with  the  production of the body  of  the  person detained while issuing a rule nisi under O.XXXV, r. 4 of the Supreme Court Rules and the rule nisi could be heard and  an appropriate  order passed in terms of O.XXXV, r.  5  without requiring  the  body of the person detained  to  be  brought before the Court. [635F-G] (2)in enacting Art. 32(2) the Constitution-makers meant to give  to  a person illegally restrained of his  liberty  the same kind of remedy, fashioned and developed over the  years in  England  and  the  United  States.   Both  on  a  priori reasoning  as also on the basis of the practice  in  England and  the  United States, the production of the body  of  the person detained was not a basic or essential requirement  of a proceeding for a writ of habeas corpus. [633-H] The  Supreme  Court  could  examine  the  legality  of   the detention of 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

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forthwith. [634-F] (3) The same procedure is set out in O. XXXV,rr.4 and 5 read with O.   XLVII, rr.  1 and 6 of the Supreme Court Rules. O. XXXV, rr.  1 and 6 of the Supreme Court Rules provides  that if on the preliminary hearing the Court is of opinion that a prima  facie case for granting the petition is made  out,  a rule nisi shall issue calling upon the respondent to  appear and  show  cause  why the order sought,  namely,  order  for release  of the person detained, should not be made  and  at the  same  time to produce in Court the body of  the  person detained "then and there to be dealt with according to law". But O. XLVII, r. 1 empowers the Court, for sufficient  cause shown,  to dispense with the requirements of O. XXXV,  r.  4 and  the  Court may direct in an appropriate case  that  the body of the person detained need no, be produced in Court at the hearing of the rule nisi.  The same is the effect of  O. XLVII,  r. 6. Where such a direction is given the  Supreme Court  would hear the rule nisi without the person  detained being  brought before it and, as provided in O. XXXV,  r.  5 "If  no cause is shown or if cause is shown and  disallowed" pass an order that the person detained be set at liberty and "if  cause  is shown and allowed" discharge the  rule  nisi. [634-G-H: 635 A-B] (4)Though  the  petitioner had a fundamental  right  under Art. 3 and the SupremeCourt is bound under Art. 32(2)  to issue appropriate direction, order or writfor enforcement of such fundamental right, there is so obligation on it to 14-L382SupCI/74 622 give any particular kind of remedy to the. petitioner.  What should be the appropriate remedy to be given is a matter for the  Court  to decide under Art. 32(2).  In  cases  of  this nature  the Court may say that it is not necessary  for  the petitioner to be produced before the Court and that it would be  sufficient  and  appropriate  instead  to  examine   the validity of the detention without having him brought  before the Court, and if. the detention is found to be lawful, pass ’an order setting him at liberty. [635 C-D] [Nature and history of the writ of habeas corpus examined]

JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 205 of 1973. Under Article 32 of the Constitution of India for issue of a writ in   the nature of habeas corpus. R.   K. Garg, for the petitioner. P.   K.  Chatterjee  and G. S. Chatterjee,  for  respondents Nos.  1 and 5. P.Rain Reddy and P. P. Rao, for respondent No. 6 and for the State of Andhra Pradesh. B. D. Sharma and S. P. Nayar, for respondent No. 7. The Judgment of the Court was delivered by BHAGWATI,  J. The short question that arises for  determina- tion  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

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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 undertrial prisoner pursuant to the remand granted from time to time by the Special Magistrate, Visakhapatnam before whom committal proceedings are pending against him in P.R.C. 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 respondent Nos.  1 and  5,  the  other by respondent No. 6  and  the  third  by respondent No. 7.- When the petition 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 623 Court  unless the petitioner was produced in person  and  in support of this contention he relied on Order XXXV, r. 4  of the  Supreme Court Rules, 1966.  The learned Vacation  Judge 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 affidavit  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  contention raised by Mr. Garg that the nonproduction of the  petitioner in  an application for a writ of habeas corpus is  violative of  his  rights under Art. 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. 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  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  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 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.   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

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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  pro- duction  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.  Mr. Garg relied heavily on Order XXXV, r.  4, which is in the following terms: .lm15 "  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 624 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 Mr.  Garg, 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." Mr. Garg had to concede that O. XLVII, r. 1 gives dispensing power  to the Court, for sufficient cause shown, to  "excuse the parties from compliance with any of the requirements  of these  rules"  and to "give such directions  in  matters  of practice   and  procedure  as  it  may  consider  just   and expedient" and O. XLVII, r. 6 enacts an overriding provision that  nothing  in  the rules "shall be deemed  to  limit  or otherwise  affect the inherent powers of the Court  to  make such  orders as may be necessary for the ends of justice  or to  prevent  abuse  of the process of the  Court",  but  his argument  was  that  production of the body  of  the  person alleged  to  be  wrongfully restrained  being  an  essential feature of a writ of habeas corpus and the right to obtain a writ  of  habeas  corpus being a fundamental  right  of  the petitioner,  it would be a part of the fundamental right  of the  petitioner  to  insist that he should  be  produced  in person before the Court and O. XLVII, rr.  1 and 6 cannot be read  so as to curtail or limit this fundamental right.   No

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rules can be framed by the Court, contended Mr. Garg,  which would  destroy the basic and essential feature of a writ  of habeas corpus, because the right to obtain a writ of  habeas corpus is a fundamental right under Art. 32.  The submission of Mr. Garg, therefore, was that it was not competent to the Court to direct that the petitioner need not be produced  in person at the hearing of the rule nisi and the production of the  person  of  the petitioner  was  essential  before  the petition could be finally disposed of by the Court. We  do  not  think  this submission  is  well  founded.   It proceeds  on  a misapprehension of what are  the  basic  and essential features of a 625 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 Anglo Saxon  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 constitute  the total historical  pattern.   Earl  of Birkenhead  described it in his speech in the  Secretary  of State  v. O’ Brien(1) 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 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  causa  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 modem  writ of  habeas corpus.  The writ of habeas corpus cum causa  was utilised  by  the  common law courts  during  the  fifteenth century as an accomplishment 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

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Ecclesiastical  courts, the Council, the Star  Chamber,  the admiralty  and the High Commission and in this struggle  for supermacy  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 follow- (1)  [1923] A. C. 603. 626 ing  passage  from the article of Maxwell Cohan  on  "Habeas Corpus Cum Causca" in 18 Canadian Bar Review at page 20:               "The  struggle took the form of the  assertion               of  jurisdiction  on  the  part  of  combatant               courts  over matters as well as persons.   Now               the   corpus  cum  causa  was  essentially   a               personal writ in the sense that the person  of               the  party named was the subject matter to  be               had  and dealt with by the court.  It will  at               once  be  apparent  that if  the  Chancery  or               Exchequer  or  the special  courts  could  not               retain control over the bodies of parties  and               suitors  before them and, further,  could  not               control  their actions upon the  determination               of the suit so as to ensure execution of their               judgments,  their  power  would  be  seriously               impaired.  This was precisely what the  King’s               Bench  and Common Pleas had in mind when  they               issued  writs of habeas corpus  to  applicants               held   under   the  process  of   some   rival               tribunal." The common law courts thus used the writ of habeas corpus to protect,  assert and extend their own  jurisdiction  against the  various  rival  courts  by  securing  the  release   of litigants  and others from custody.  By means of  this  writ they brought before themselves and released persons who  had been  imprisoned  by one of the rival courts if.’  in  their opinion, the court had acted in excess of its  jurisdiction. The  writ  of habeas corpus, known in this  form  as  habeas corpus  ad subliciandum, thus came to be a writ by  which  a person  unlawfully imprisoned could secure his release.   In this  way  it assumed great constitutional importance  as  a device for impugning the validity of arbitrary  imprisonment by the executive and, as pointed out by  Holdsworth in  vol. 1  of his "History of English Law...... its position as  the most  efficient protector of the liberty of the subject  was unquestioned  after the Great Rebellion".  It was  for  this reason  that men began to assign as its direct ancestor  the clauses  of  the Magna Carta which  prohibited  imprisonment without  due process of law.  The history of the writ  which we  have  given shows that there is no  direct  descent  but there  can be no doubt that there is an indirect  connection between  the  writ and the Magna Carta,  because,  far  more effectively  than  any  other remedy,  the  writ  helped  to vindicate  the  right of freedom guaranteed  by  the  famous words of the Magna Carta.  The decision in Darnel’s  case(1) was  a set-back in the struggle for liberty since it  eroded to  some extent the effectiveness of the writ by taking  the view  that  a  return that the arrest was  "by  the  special command of the King" was a good and sufficient return to the writ,  which meant that a lawful cause of  imprisonment  was shown.   But  the  Petition of Right,  1627  overruled  this decision  by  declaring such a case of  imprisonment  to  be unlawful.   In  the same way, it was enacted in  the  Habeas Corpus Act, 1640 abolishing the Star Chamber that any person committed  or  imprisoned by order of the  Star  Chamber  or similar  bodies  or  by the command of the King  or  of  the

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Council  should have his habeas corpus.  There were  various other defects also which were revealed in course of time and with a view to remedying those defects (1)(1627) 3 State Trials 1. 627      and making the writ more efficient as, an instrument of securing  the  liberty of the subject  unlawfully  detained, reforms were introduced by the Habeas Corpus Act, 1679,  and when even these reforms were found insufficient, the  Habeas Corpus  Act,  1816 was enacted by which the benefit  of  the provisions of the Habeas Corpus Act, 1679 was made available in cases of civil detention and the judges were empowered to inquire into the truth of the facts set out in the return to the  writ.  The machinery of the writ was thus perfected  by legislation  and  it  became  one  of  the  most   important safeguards of the liberty of the subject and, as pointed out by Lord Halsbury L.C., in Cox v. Hakes,(1) it has throughout "been jealously maintained by courts of law as a check  upon the illegal usurpation of power by the executive at the cost of the liege.      It will be seen from this brief history of the writ  of habeas  corpus that it 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 form of the  writ employed  is  "We command you that you have  in  the  King’s Bench  Division  of our High  Court  of  Justice-immediately after  the receipt of this our writ, the body of A.B.  being taken  and detained under your custodytogether with the  day and  cause  of his being taken and detained-to  undergo  and receive  all  and singular such matters and  things  as  our court  shall then and there consider of concerning  hint  in this  behalf".  The underlined words show that the  writ  is primarily  designed  to  give a  person  restrained  of  his liberty  a  speedy  and  effective  remedy  for  having  the legality  of his detention enquired into and determined  and if  the, detention is found to be unlawful,  having  himself discharged   and  freed  from  such  restraint.   The   most characteristic  element  of the writ is  its  peremptoriness and,  as  pointed  out by Lord Halsbury,  L.C.,  in  Cox  v. Hakes,(1)  "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.  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 (1)  [1890] 15 A.  C. 506. 628

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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 question  is whether in these circumstances it call be  said that the production of the body of the person alleged to  be unlawfully  detained  is essential in an application  for  a writ  of  habeas corpus.  We do not think so.  There  is  no reason in principle why that which was merely a step in  the procedure  for  determining the legality  of  detention  and securing  the  release of a  subject  unlawfully  restrained should  be  elevated to the status of a basic  or  essential feature  of  the  writ.   That step  Was  essential  to  the accomplishment  of the purpose of the writ at one time,  but it is no longer necessary.  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 pro- duced  before  the court.  Why then should it  be  necessary that  the  body  of  the person  alleged  to  be  wrongfully detained  must  be  produced  before  the  court  before  an application  for a writ of habeas corpus can be  decided  by the court ? Would it not mean blind adherence to form at the expense  of  substance ? Why should we  hold  ourselves  is, fetters  by  a practice which originated  in  England  about three  hundred  years ago an account of  certain  historical circumstances  which  have ceased to be valid even  in  that country and which have certainly no relevance in ours ?  But we  may  point  out that even in England  it  is  no  longer regarded as necessary to order production of the body of the person alleged to be. wrongfully detained, in an application for a writ of habeas corpus. In  England  it  is  well settled as  a  result  of  several decisions  that the writ of habeas corpus is not granted  as of  course  as  would an original  writ  for  initiating  an action.  It is issued only on probable cause being shown  by an affidavit either of the person detained or of some  other person on his behalf.  The applicant for the writ must  show prima  facie that he is unlawfully detained.  If  he  cannot show  prima  facie that there is sufficient ground  for  his discharge the writ would not issue and his application would be summarily rejected.  Now, up to the end of the eighteenth century  the procedure that was followed in application  for the  writ of habeas corpus was that when the applicant  made out a prima facie case of an unlawful detention he would  be entitled to issuance of the writ as of right.  In  obedience to the writ the respondent would produce the person detained before  the  court and file a return showing  the  cause  of detention.   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 629 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 tile respondent

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in tile return filed by him that the detention was perfectly lawful and the applicant had it(-, case at all and the  writ need not have issued.  The practice., therefore,  started-it is  difficult  to  say  precisely  when,  but  the  earliest reported  instance  of it is to be found in  the  year  1784 (see, Wade’s case reported in the note to Blake’s  case(1)of issuing  rule nisi in the first instance.  If the  applicant made  out a prima facie case of unlawful detention,  a  rule nisi would issue to the respondent and on the rule nisi  the case  would be argued on the merits and if the  court  holds the detention illegal, there would be rule absolute for  the issue  of  the  writ and the body would be  brought  up  and discharge ordered.  This of-course does not me-an that in no case  would a writ issue on exparte application.  The  court could   always  issue  a  writ  forthwith  on  the   exparte application,   but  this  power  would  not  ordinarily   be exercised  except  in  an urgent case or  when  time  is  of importance  or  where there is a likelihood that  delay  may defeat  justice, as for example, it is apprehended that  the person  detained  may be removed outside  the  jurisdiction. (see Halsbury’s  Laws of England, Vol. II. page 39, para 72, and  Be Anand (2)  Now, where is rule nisi is issued.  which is  the normal event, and on the hearing of the  rule  risi, the  court finds that the, detention is unlawful , it  would be superfluous to ,issue a writ requiring the production  of the  body of the person detained in order merely to  release him   from  detention,  when  he  can  even   otherwise   be effectively released without requiring such production.   In fact  in  many cases the person detained would  be  able  to obtain  his  actual  release much earlier  if  an  order  of release were passed by the court on the hearing of the  rule nisi than he would be able to obtain if a writ is issued, he is  produced before the court on the day named in  the  writ and an order of release is passed on that day.  The practice was,  therefore, adopted not to go through the formality  of the  writ  but  to straight away order the  release  of  the person detained. if, on the hearing of the rule nisi, it was found  that  the  detention was  unlawful.   In  Eggington’s case(3) on an application made by one J. Grey for a writ  of habeas  corpus  to  secure the release  of  Alfre  Eggington alleged  to be unlawfully detained a rule was issued by  the court calling on the respondent to show cause why a writ  of habeas corpus should not issue directed to the keeper of the jail  at Stafford commanding him to have the body of  Alfred Eggington  before  the  court  immediately  to  undergo  and receive  etc.  and why in the event of the rule  being  made absolute,  Alfred Eggington should not be discharged out  of the  custody  of the said keeper without the  writ  actually issuing or Alfred Eggington being personally brought  before the court.  The respondent raised an objection that the rule could  not be issued in this form.  Lord Campbell  negatived the objection stating "I have repeatedly granted it-in  this form-in  order  to avoid the necessity of  bringing  up  the party".  So also in Geswood’s Case(4) tile (1) 2 M. &. S. 428. (2) [1941] 2 K B. 239. (3)2E.L. & B. D.L.717=119F.R.936. (4)2E.L.& B.L.952  118R.B.1222. 630 same  kind of rule was issued by the court and the cause  of detention  shown in the return being insufficient the  court made  the "rule absolute to discharge the  prisoner".   This practice  found recognition in the Crown Office Rules,  1886 which were made under the Judicature Act, 1875 to govern the practice and procedure on the Crown Side of the King’s Bench

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Division.   We need not refer to the specific provisions  of the  Crown Office Rules, 1886 relating to application for  a writ of habeas corpus, because they were identical with  the corresponding  provisions  of the Crown Office  Rules,  1906 which superseded the Crown Office Rules, 1886.  Speaking  of an  application for a writ of habeas corpus, rules  217  and 218 of the Crown Office Rules, 1906 provided :               "R.   217.    If  made  to  the   Court,   the               application  shall be by motion for an  order,               which  if  the  Court so direct  may  be  made               absolute ex parte for the writ to issue in the               first instance; or if the Court so direct they               may grant an order nisi.               R.218.   If made to a judge he  may  order               the  writ  to  issue ex  parte  in  the  first               instance, or may direct a summons for the writ               to issue." Rule  225  then proceed to state that "On  the  argument  of every  ,order  nisi  or summons at Chambers for  a  writ  of habeas  corpus  the  Court  or Judge  may,  in  its  or  his discretion,  direct  an  order  to  be  drawn  up  for   the prisoner’s  discharge,  which order shall  be  a  sufficient warrant  to any gaoler or constable or other person for  the discharge  of  the prisoner or any infant  or  person  under restraint."  It is thus evident that if, on the  hearing  of the  rule nisi or summons, it was found that  the  detention was   unlawful,  the  person  detained  would  be   released forthwith  without  requiring him to be brought  before  the court.   The validity of this practice was  assailed  before the  House  of  Lords in Cox v. Hakes  (supra)  and  it  was contended  that  it was not competent to the High  Court  to discharge  the  prisoner without having  him  first  brought before  the Court, and rule 244 of the Crown  Office  Rules, 1886,  corresponding to rule 225 of the Crown Office  Rules, 1906 which gave sanction to such a course, was ultra  vires. Lord  Herschell repelled this contention pointing  out  that the  respondent had failed to satisfy him that the rule  was ultra  vires  and that there was nothing to  show  that  the presence  of the "person whose custody was in  question  was essential to the jurisdiction of the High Court to discharge him".  The Crown Office Rules, 1906 were revoked and so  far as  they related to the practice and procedure in regard  to application   for  a  writ  of  habeas  corpus,  they   were incorporated in Order LIX as rule I clause (c) and rules  14 to 23 by the Rules of the Supreme Court (Divisional  Courts) 1938.   No substantial change was made in the  practice  and procedure save and except that instead of rule nisi nd order nisi, the new rules provided that when an application for  a writ is made and prima facie grounds are shown, the court or Judge  may direct that notice of motion be given or  summons be taken out for issuance of the writ or the application  be adjourned so that notice 631 thereof may be- given to the respondent. (see r. 16).  Rule 19 corresponded to former r. 225 and was almost in the  same terms  as  that  rule with  only  some  minor  consequential changes.   The  entire  rules  of  the  Supreme  Court  were thereafter  revised and rewritten and passed and  issued  as one  complete  integral body of Rules under the  title  "The Rules of the Supreme Court, 1965".  These are the Rules  now in force in England.  Order LIV of these Rules embodies  the rule  relating to application for a writ of  habeas  corpus. Here  again  we do not find any substantial change  and  the practice and procedure remains basically the same as it  was before.   Rule  4(1)  is in almost identical  terms  as  the

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earlier r. 19 and provides that where the court or the judge hears  the application after notice of motion or summons  or notice  of the application is served on the respondent,  the court  or the judge may in its or his discretion order  that the person restrained be released and such order shall be  a sufficient warrant to any governor of a prison, constable or other person for the, release of a person in restraint.  The editors  of  the Supreme Court Practice commenting  on  this rule say at page 765 :               "At  the hearing an order may be made for  the               writ  to issue in accordance with r. 5, but  a               modern  practice  has grown up  of  making  an               order  for  release as provided by r.  4-,  in               which  case the writ is not  formally  issued:               the  Master of the Crown office writes to  the               prison governor directing the discharge of the               prisoner, and the return to the writ need  not               show the cause of detainer but merely the fact               of release." Wade and Phillips also in their Constitutional Law (8th ed.) at page 492 described the modem practice and procedure in an application for a writ of habees corpus in the same terms :               "If  prima facie grounds are shown, the  Court               or  Judge  ordinarily directs that  notice  of               motion be given or a summons issued.  Argument               on  the merits of the application  then  takes               place on the day named.  If the Court decide,-               , the writ should issue, it orders the release               of  the  prisoner or the handing over  of  the               infant  to  the applicant, and this  order  is               sufficient  warrant  for the  release.   Under               this practice there is no need to produce  the               prisoner in court at the hearing and no return               to the writ is actually made." It is, therefore, evident that even in England, which is the country  where  the writ of habeas  corpus  originated,  the superfluity  of  issuing the writ has been discarded  and  a pragmatic approach has been adopted which is concerned ’more with the substance of the remedy than its form. We find that in the United States also the same practice, is followed in an application for a writ of habeas corpus.  The earliest case on the point is to be found in Exparte  Tobias Watkins.(1)  In  this case on an application for a  writ  of habeas corpus, a rule was served on the (1)(1833) 7 pet. (U.  S.) 568; 8 L. Ed. 786. 632 Attorney-General  to show cause why the, application  should not  be  granted  and the cause was fully  argued  upon  the return of the rule The Court delivering its judgment said  : "It is admitted that all the facts existing in the case have been laid before the court exactly .is they would appear  if the  habeas  corpus had been duly awarded and  returned;  so that  the  judgment  which the courts  are  called  upon  to pronounce,  is precisely that which ought to  be  pronounced upon  a full hearing upon the return to the writ  of  habeas corpus  and it has accordingly been so argued at  the  bar", and  held that the applicant was entitled to  be  discharged from confinement.  Similarly in Exparte Yarbrough(1) a  writ of  habeas  corpus  was prayed for on the  ground  that  the applicant’s  trial, conviction and sentence in  the  Circuit Court of the United States for the District of Alabama  were illegal,  null  and void.  The Supreme Court issued  a  rule nisi to show cause why the writ of habeas corpus should  not issue for the release of the detenu.  The Superintendent  of Alabama  Penitentiary  filed  a  return  showing  that   the

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applicants were held prisoners by virtue of the sentence  of the  Circuit Court on the hearing of the rule  proceeded  to examine whether the detention of the applicants was  lawful. The Supreme Court did not say that until the applicants  are produced before them, they would not be competent to inquire into  and  determine  the legality of  the  detention.   The Supreme  Court, on the contrary, said : "As this  return  is precisely the same that the Superintendent would make if the writ of habeas corpus had been served on him, the Court here can  determine the right of the prisoners to be released  on this  rule  to  show  cause,  as  correctly  and  with  more convenience  in the administration of justice, than  if  the prisoners were present under the writ in the custody of  the Superintendent," and pointed out that "such is the  practice of  this court." The Supreme Court also observed ill an  oft quoted passage from the judgment in Walker v. Johnston  :(2) "Since   the  allegations  of  such  petitions   are   often inconclusive, the practice has grown up of issuing an  order to  show  cause, which the respondent may answer.   By  this procedure  the facts on which the opposing parties rely  may be exhibited, and the. court may find that no issue of  fact is  involved.   In this way useless grant of the  writ  with consequent  production of the prisoner and of witnesses  may be   avoided   where   from   undisputed   facts   or   from incontrovertible  facts,  such as those recited in  a  court record, it appears, as matter of law, no cause for  granting the writ exists.  On the other hand, on the facts  admitted, it  may  appear  that, as matter of  law,  the  prisoner  is entitled to the writ and to a discharge.  This practice  has long  been followed by this court and by the  lower  courts. It  is  a  convenient one, deprives  the  petitioner  of  no substantial right ’. It would thus be seen that according to the  practice in the United States a rule nisi is issued  in the first instance and on the hearing of the rule nisi,  the legality,  of the detention is inquired into and  determined without  requiring the production of the prisoner  detained, and  if  the  production  is found  unlawful,  an  order  of discharge  is  made sometimes accompanied by all  order  for issue  of a writ of habeas corpus and sometimes without  it. The  issue  of the writ of habeas corpus is,  of-course,  an idle formality, (1) (1884) 110 U. S. 651; 28 L. Ed. 274. (2) 312 U. S. 275; 85 L. Ed. 830. 633 for,  if the person detained is set free in compliance  with the  order of release, there can be no return to  the  writ. We find an accurate summary of the legal position set out in Corpus Juris Secundum, vol. 39, page 659, para 93 :               "In  general the body of the  person  detained               must be produced with the writ; but production               in  court  of  the person detained  is  not  a               prerequisite  to jurisdiction and in a  proper               case may be excused or dispensed with.               In  accordance with the command of  the  writ,               and  the governing statutes, the body  of  the               person  detained  must be  produced  with  the               return  before the court or judge issuing  the               writ.   Production  in  court  of  the  person               detained   is  not  a  prerequisite   to   the               jurisdiction  of  the court to  determine  the               question  involved.  He need not  be  produced               unless the court deems his presence necessary.               Production  of  the  prisoner  bodily  may  be               excused  or  dispensed with where  it  appears               that for any reason the production of the body

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             is impossible, impracticable, or improper,-" The  practice followed in the United States of  releasing  a person found to be illegally detained without requiring  him to be brought before the Court disloses a pragmatic approach to  the  problem,  for, it concerns  itself  more  with  the accomplishment of the primary purpose of the proceeding than with compliance with its superfluous element. This was the practice and procedure in an application for  a writ  of habeas corpus and this is how the  jurisdiction  in regard to writ of habeas corpus was exercised by the  courts in England as well as in United States when the Constitution makers   framed  Art.  32  of  the  Constitution.   It   is, therefore,  reasonable to assume that when the  Constitution makers  provided in Art. 32(2) that the Supreme Court  shall have  power  inter  alia to issue a writ in  the  nature  of habeas corpus, they had in mind the writ of habeas corpus as administered in England and the United States at that  time. The Constitution makers could never have intended that while dealing  with  an application for a writ  of  habeas  corpus under Art. 32, the Supreme Court should shut its eyes to the development  in  the  law in regard to the  writ  of  habeas corpus in the last two hundred years, in the country of  its origin and the manner in which the jurisdiction in regard to the writ of habeas corpus is exercised in the country of its adoption  across  the Atlantic, and ignoring  the  facts  of history,  allow  itself to be petrified in the  age  of  the Tudors  and  the  Stuarts when the writ  was  struggling  to emerge as an effective weapon in the protection of  personal liberty.  There can be no doubt that in enacting Art.  32(2) the  Constitution makers meant to give to  person  illegally restrained of his liberty the same kind of remedy, fashioned and  developed over the years, which is counterpart  enjoyed in England and the United States.  It would indeed be highly anomalous  and strange that when in England and  the  United States  the  remedy by way of a writ. of  habeas  corpus  is shown of its superfluous element and made 634 more  Convenient and effective from a functional view  point by  dropping  the requirement of production  of  the  person detained,  we in India should still hold ourselves bound  by the  old form of procedure and pay homage to  a  superfluity which has been discarded a long ago in those, two countries. Why, should the ghost of the past and that too not ours  but that  of another country-be allowed to continue to haunt  us and  cloud our vision of rationality.  It has been  held  by this  Court in T. C. Basappa v. T. Nagappa & Anr.  (1)  that "in  view of the express provisions in our  Constitution  we need  not  now  look  back  to  the  early  history  or  the procedural technicalities of these writs in English law, nor feel  oppressed  by  any difference  or  change  of  opinion expressed  in  particular cases by English Judges.   We  can make an order or issue a writ in the nature of dertiorari in all appropriate cases and in appropriate manner, so long  as we  keep  to  the  broad  and  fundamental  principles  that regulate  the  exercise  of jurisdiction in  the  matter  of granting  such  writs in English law." (the  underlining  is ours)  When we find, both on a priori reasoning as  also  on the basis of the practice in England and the United  States, that  the production of the body of the person  detained  is not  a basic or essential requirement of a proceeding for  a writ of habeas corpus-it is a superfluous element which  can be  discarded  without  effecting the  utility,  and  effec- tiveness  of the remedy-there is no reason or  justification why  we  should  insist  upon  it  while-  dealing  with  an application  for  a writ of habeas corpus.   The  broad  and

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general   principles   that   regulate   the   exercise   of jurisdiction to issue a writ of habeas corpus in English law have  been discussed by us and they do not require that  the body  of’  the person detained must be produced  before  the legality   of  the  detention  can  be  inquired  into   and determined  by  the court.  We must,  therefore,  hold  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.  This, in fact, is the  procedure, set out in order XXXV, Tr. 4 & 5 read with Order Y.LVII, Tr. 1  and  6  of the Supreme Court Rules.   Order  XXXV,  T.  4 provides that if on the preliminary hearing the Court is  of opinion that a prima facie case for granting the petition is made  out-and  granting the petition would mean  passing  an order  of release of the person detained-a rule  nisi  shall issue  calling upon the respondent to appear and show  cause why  the  order  sought, namely, order for  release  of  the person detained, should not be made and at the same time  to produce  in Court the body of the person detained "then  and there, to be dealt with according to law".  It would  appear that according to this Rule the body of the person  detained must be produced in Court on the, day fixed for the  hearing of the rule nisi.  But Order XLVII, r. I empowers the Court, for   sufficient   cause  shown,  to  dispense   with   this requirement of Order XXXV, (1)  [1955] S. C. R. 250.                             635 r.   4 and the Court may direct in an appropriate case- that the  body  of the person detained need not  be  produced  in Court  at  the hearing of the rule nisi.  The  same  is  the effect  of  Order XLVII, r. 6. Where such  it  direction  is given,  the Supreme Court would hear the rule  nisi  without the person detained being brought before it and, as provided in  Order XXXV, r. 5, "if no cause is shown or if  cause  is shown and disallowed" pass an order that the person detained be  set  at  liberty, and "if cause is  shown  and  allowed" discharge  the rule nisi.  That would be exactly  in  accord with  the manner in which the jurisdiction in regard  to  an application  for  a writ of habeas corpus  is  exercised  in England and the United States.  We fail to see how that  can be regarded as in any way contradictory or violative of Art. 32  of the Constitution.  Moreover, it may be  noticed  that though  the  petitioner has a fundamental right  under  Art. 32(1)  to move the Supreme Court by  appropriate  proceeding for enforcement of any of his fundamental rights  guaranteed under  Part  III and the Supreme Court is bound  under  Art. 32(2)  to  issue  appropriate direction order  or  writ  for enforcement   of  such  fundamental  right,  there   is   no obligation on the Supreme Court to give any particular  kind of remedy to the Petitioner.  What should be the appropriate remedy to be given to the petitioner for enforcement of  the fundamental right sought to be vindicated by him is a matter for  the  Supreme  Court to decide under  Art.  32(2).   The Supreme  Court may, in the exercise of its power under  Art. 32(2),  say  that  in order to give  relief  to  the  person detained  for enforcement of Ms personal freedom, it is  not necessary to go through the idle formality of requiring  him to  be  produced  before  the Court and  that  it  would  be

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sufficient  and appropriate instead to examine the  validity of  the  detention without having being brought  before  the Court, and if the detention is found to be unlawful, pass an order setting him at liberty. We  are,  therefore, of the view that there is  nothing  in. Art. 32 which requires that the body of the person  detained must be produced be-fore an application for a writ of habeas corpus  can  be  heard  and decided by  the  Court.   It  is competent  to the Court to dispense with the  production  of the  body of the person detained while issuing a  rule  nisi under Order XXXV, r. 4 and the rule nisi can be heard and an appropriate  order  passed  in terms of  Order  XXXV,  r.  5 without  requiring  the, body of the person detained  to  be brought before the Court.  This was the only question before us and now that it is deter mined the petition will have  to go  back to the appropriate Bench for disposal according  to law. P.B.R. 636