Report No. 41

Chapter XXXVII

Directions of The Nature of a Habeas Corpus

37.1. History of section 491.-

Chapter 37 consists of a single section which confers on the High Courts the power to issue directions of six different types, all of them being in the nature of a habeas corpus. The section, as originally enacted in 1898, conferred the power only on "the High Courts of Judicature at Fort William, Madras and Bombay" and the territorial limits within which any of these three High Courts could exercise the power were "the limits of its ordinary original civil jurisdiction" which coincided with the limits of the presidency towns.

The scope of the section was considerably widened by the Criminal Law Amendment Act, 1923. Instead of only the three High Courts at Calcutta, Madras and Bombay, all the High Courts in British India were conferred the power of issuing these directions. Furthermore, instead of being restricted in territorial extent to the limits of the ordinary original civil jurisdiction of the High Court, the power was made exercisable within the limits of its appellate criminal jurisdiction, i.e., within the limits of the Province or Provinces over which the High Court had authority.

37.2. Types of directions under section 491.-

The first two of the six directions which may be issued under section 491(1) correspond to the wel.-known writ of habeas corpus and are described in clauses (a) and (b) of the section as follows.-

"(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be dealt with according to law;

(b) that a person illegally or improperly detained in public or private custody within such limits be set at liberty;"

The next three clauses (c), (d) and (e) describe the circumstances in which, and the purposes for which, prisoners detained in any jail within the jurisdiction of the High Court could be directed to be brought up before the High Court itself or before some other Court or authority. The last clause (f) empowers the High Court to direct "that the body of a defendant within such limits be brought in on the Sheriff's return of cepi corpus to a writ of attachment".

37.3. Clauses (a) and (b) rendered superfluous by Article 226.-

It will be noticed that Article 226 of the Constitution confers wide and comprehensive powers on the High Courts of States "to issue to any person or authority, including inappropriate cases any Government, directions, orders or writs, including writs in nature of habeas corpus, mandamus, prohibitio, quo warranto and certiorari" for any purpose. In view of this provision, clauses (a) and (b) of section 491(1) have been practically rendered superfluous and can be safely omitted.

37.4. Clauses (c), (d) and (e.-omission recommended.-

We have in another Report1 considered in detail the provisions of clauses (c), (d) and (e) relating to the production of prisoners in Court for various purposes and recommended that these clauses (and also section 542 of the Code) should be omitted and more detailed provisions on the lines of those contained in the Prisoners (attendance in Courts) Act, 1955, should be included in this Chapter as section 491A.

1. 40th Report on the Law relating to Attendance of Prisoners in Courts.

37.5. Clause (f) to be omitted.-

Clause (f) which is couched in archaic and obscure language relates to "a writ of attachment" which the High Court may have issued and in regard to which the Sheriff of the Presidenc.-town has submitted "a return of cepi corpus". This' writ of "attachment" is really a writ of arrest in execution of a civil decree directed to the Sheriff, requiring him to arrest a person named in the writ and to have the "body" of the person produced before the Court on a given date. On this writ the "return" by the Sheriff sets forth what has been done by him under it.

The literal meaning of cepi corpus is "I have taken the body"; and in its full form cepi corpus et paratum habeo, it means "I have taken the body and have it ready".1 Since the power of arrest in execution of a civil decree is exhaustively dealt with in the Civil Procedure Code and since the original civil jurisdiction of the three Presidency High Courts has been practically abolished, the power under clause (f), section 491(1), is seldom, if ever, required to be used.

1. See Jowitt's Dictionary of English Law, (1959), Vol. I, p. 332.

37.6. Chapter 37 to be replaced by a different Chapter.-

We, therefore, propose that section 491 be omitted and in its place provisions for securing the attendance of prisoners in Criminal Courts be included in this Chapter as recommended in the 40th Report. The existing Chapter XXXVII may be replaced by the following Chapter.-