Report No. 40
30. Power of High Courts under section 491(1)(e).- The next clause of section 491(1)-clause (e)-empowers a High Court to direct1 "that a prisoner within such limits be removed from one custody to another for the purpose of trial". Under this widely worded clause, there is no limitation as to the kind of custody-civil, criminal, military or other-from which a prisoner may be transferred or as to the kind of custody to which he may be transferred, so long as the transfer is for the purpose of trial.
In a Patna case2, a person who was tried by a special court which had no jurisdiction was, on an application for habeas corpus, not discharged but ordered to be removed to another jail and to be produced in the court of the sub-divisional magistrate to take his trial. The order was made under clause (e) of section 491(1). This appears to be the only reported reliance on this clause. It may well be regarded as obsolete and omitted.
1. This corresponds to the writ known as Habeas Corpus ad deliberandumet recipiendum. It has, for instance, been granted in England to remove a person in custody in one country for contempt to take his trial for perjury in another country. The writ is obsolete, as modern legislation adequately provides for the removal of prisoners from one custody to another for various purposes.
2. Sukhdeo v. Emp., AIR 1943 Pat 288.
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