Introduction:
The term ‘Habeas Corpus’ literally translates to “to have a body of.” This writ is used to release someone who was wrongfully imprisoned or detained. The Writ of Habeas Corpus is equivalent to a court order. The Court, under this writ, orders that the individual so detained be brought before it so that the lawfulness of his custody can be determined. If the tribunal determines that the imprisonment was illegal, the individual must be released immediately. The writ may be addressed to any person, whether an official or a private individual, who is in charge of another person. And the warrant issued under section 97 of the CRPC is like habeas corpus, allowing police to intervene on behalf of an unlawfully imprisoned individual following a magisterial order. In India, a husband rarely uses the writ of habeas corpus to regain his wife; instead, they always seek the alternative remedy under Section 97.
A debate occurred in the Court of appeal on May 20, 2021, before a bench of Justices Maheshwari and Aniruddha Bose, that the Habeas Corpus Writ protects a citizen’s liberty, must be upheld outside as well and, should not be only valid in a courtroom when the Supreme Court ordered an appellant to withdraw his Writ Petition (Habeas Corpus) filed under Article 32 of the Indian Constitution and to approach the authorities under Section 97 CRPC. The husband had filed a Habeas Corpus writ in the Supreme Court, stating that his wife had been wrongfully imprisoned by her family because they did not approve of their marriage. The petition was withdrawn after the judge reminded the petitioner of Section 97 of the CRPC in the course of the hearing.
What does Section 97 CRPC state?
Section 97 CRPC states that, “Search for people who have been wrongfully convicted. If a District Magistrate, SDM, or Judicial Magistrate of the First Class has reason to believe that a person is being detained unlawfully, they may issue a search warrant, and the person to whom the warrant is directed may search for the person who is being detained unlawfully, and such search shall be conducted under the warrant, and the person, if convicted, shall be punished.”
The provision requires to “produce the body of the victim” in front of the authorities. The Court stated in Jay Engineering Works v. The State (AIR 1968)[1] that a writ of habeas corpus issued under section 97 CRPC is for the rescue of an unlawfully detained individual through police involvement mandated by a magisterial order.
Before issuing a warrant under this clause, the magistrate must be satisfied that a person has been unlawfully confined, according to the decision of Anuara Begum v. Habil Mea (AIR 1962). The right given under Section 97 cannot be invoked if the allegedly detained person thereafter appears in front of the Magistrate and states that they were not unlawfully detained. However, the provision does not obligate the magistrate to carry out a comprehensive investigation or to keep a record of any findings that are required after adjudication. The aggrieved party also has no right to be heard before the search warrant is issued by the magistrate It was used by a father to release his wedded daughter from her in-laws’ unlawful detention in the case of Pravin Singh v. Biharilal Singh (AIR 1989)[2].
What is an Alternate Remedy?
The authority over alternative remedies has been regarded as a self-imposed restriction. It is primarily a strategy, beneficial, and discretionary rule, not a legal rule. Despite the existence of an effective remedy, the High Court might issue an order for relief based on Article 226 of the Constitution at its discretion. In the case of Balkrishna Ram v. UOI (AIR 2020)[3], the SC stated that an alternative remedy rule is a discretionary rule rather than a jurisdictional rule. As the fact that the Court may not exercise its discretion does not imply that it has no jurisdiction. The concept that the High Court should not apply its extraordinary writ jurisdiction when an efficient alternative remedy is available is a principle of prudence, not a rule of law. The writ courts will normally refrain from exercising their extraordinary power unless the appellant has another effective remedy. However, the existence of such a remedy does not preclude the High Court from exercising jurisdiction.
Situations in which Section 97 of the CRPC can be Invoked
Habeas Corpus as per Article 32 or 226 had never been used in circumstances involving a claim for recovery of conjugal rights, especially when the wife was being held against her will by her family. However, petitioners in 2020, rush to Supreme Courts with writ petitions seeking such orders, even when they have other effective, less expensive, and less time-consuming remedies.
In the case of Seeta Devi v. Mata Pher (AIR 1997)[4], the writ of Habeas Corpus was dismissed and the court stated that the legal perspective that emerges is that a writ of habeas corpus should not, as a matter of course, be given upon the request of a husband against his wife’s parents or other close relatives. This exceptional remedy should only be used in extreme circumstances. In most cases, the appellant should seek out the remedy given under Section 97 CRPC, or the restitution of conjugal rights remedy.
Similarly, the Supreme Court admonished the appellant in Muhammad Ikram Hussain v. The State of Uttar Pradesh[5] (AIR 1964) for seeking a Habeas corpus writ for restitution of conjugal rights and advised him to seek the authorities under Seсtiоn 97 CRPC or file for a civil remedy. “The Court must decide what constitutes wrongful detention of the wife in each case, and several circumstances may occur that either enable or prohibit a husband to this remedy, “the court said, adding that ” The writ of habeas corpus is rarely used by a husband to reclaim his wife in English law,” and in India, the writ of habeas corpus is never used by a husband to reclaim his wife, instead they opt for the alternative remedy under section 97 of the CRPC. Another option is to file a civil lawsuit to recover conjugal rights. Husbands use the latter when the detention isn’t regarded as an offense, and the former when it is. Section 97 of the CRPC was also exercised by a father to release his wedded daughter from her in-laws’ unlawful detention in Pravin Singh v. Biharilal Singh (AIR 1989)[6].
Situations in which Section 97 CRPC cannot be Invoked
In Capt. Dushyant Somal v. Smt. Sushma Somal[7] (AIR 1981), A child who had been given to the mother’s custody by court order was forcefully taken by the father. The mother appealed for habeas corpus to gain custody of her kid. An argument was made that a habeas corpus petition could not be proved and that an action under the Guardians and Wards Act was the right remedy. The court pointed out that even if the minor’s custody is not illegal, the mother’s habeas corpus petition is completely maintainable. Because the custody was not illegal, the said Court granted a writ of habeas corpus, concluding that in the instance of minors, a writ of habeas corpus may not be denied simply because an alternative remedy exists to challenge the constitutionality of the imprisonment.
And in Munni Devi v. The State of U.P. (AIR 1990), In this case, the girl was imprisoned at a Nari Niketan. The child was a major who had been ordered by the court to be detained inside a Nari Niketan. As a consequence, the girl’s detention in the Nari Niketan did not amount to a crime, and Section 97 of the CRPC was not invoked. A habeas corpus writ was issued as a result of these circumstances. In Ramesh v. Laxmi Bai[8] (AIR 1998), When the child was living with his father, the supreme court decided that the facts and circumstances of the case do not seem to attract Section 97 CRPC. However, a warrant can be issued under section 97 in the instance of a person unlawfully detained by a Gherao for his rescue the same was held in Jay Eng. Works v. The State (AIR 1968).
International Approach
International human rights norms now include the power to question one’s arrest or detention. In countries with a common law system, this right can be exercised through the exceptional process of the habeas corpus writ, or through the standard procedural process, which includes appeals and requests for retrial in civil law countries. The hаbeаs соrрus writ is enfоrсeаble in Саnаdа, Jараn, Раkistаn, аnd the United Kingdоm. Due to considerable statutory protections, the writ’s prominence and use in the UK have reduced significantly. Article 99 of Pakistan’s 1973 Constitution recognizes the writ, giving the High Court power to hear and address the issue. After the Second World War, Japan’s Constitution was amended to include the writ, which was influenced by the US, although the Human Rights Committee of the United Nations has criticized Japan for its ineffective Habeas Corpus laws. The SC of Canada stated that the statute requiring the imprisonment of people deemed inadmissible to Canada on national security grounds must be changed to respect their ability to ask for habeas corpus relief. The constitutional and legislative protections against arbitrary detention in Germany and France conclude that they are similar to or equivalent to writs of habeas corpus. The remaining countries have varying constitutional and legislative provisions that allow courts to assess the legitimacy of a person’s detention or arrest.
Conclusion
Because of shortcuts, Section 97 CRPC has become a dead letter. So, before seeking the HC extra-ordinary jurisdiction, an aggrieved party must first exhaust all other legal remedies accessible to him or her. Even the court of appeal would not review a petition of the writ if the party who has been wronged has not exhausted all alternative remedies, especially if such remedies are enshrined in law. In a society where citizens don’t have equal access to legal systems, having a remedy under Section 97 CRPC that expedites the procedure of terminating wrongful detention without involving the court is essential.
The complainants’ petitions must be taken seriously by the police, District Magistrates, and SDMs so that they are not denied justice and do not find it necessary to go to the Court of Appeal unreasonably. It will save the Courts valuable time and lead to a better and more just society in which rights are successfully enforced- even outside of the Courts. Finally, Section 97 CRPC has a lot of potential for use in Habeas Corpus cases and shouldn’t be overlooked.
References:
[1] AIR 1968 Cal 407, 72 CWN 440
[2] 1989, Cri Lj 1386(Bom).
[3] 9/01/2020,(Civil) No. 6999 of 2017
[4] 1998 CriLJ 645
[5] 1964 AIR 1625, 1964 SCR (5) 86
[6] 1989 Cri LJ 1386 (Bom)
[7] AIR 1981 SC 1026, 1981 CriLJ 719, 1981 (1) SCALE 615
[8] 1999 CriLJ 5023, (1998) 9 SCC 266
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