By Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
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And Sarthak Saxena
mity Law School, Delhi

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."


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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