LexKANU SANYAL versus DISTRICT MAGISTRATE, DARJEELING & ORS.
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A B c D E F G H KANUSANYAL v. 621 DISTRICT MAGISTRATE, DARJEELING & ORS. September 11, 1973 [A. N. RAY, CJ., D. G. PALEKAR, Y. V. OIANDRACHUD, P. N. BHAGWAT! AND V. R. KRISHNA !YER, JJ.J Constitution of India, Art. 32-Habeas Corpu,,_oxxxv, rr. 4 and S and 0. XLJIJJ. rr. 1 and 6 of Supreme Court Rules-Whether production of tht bodv of the <htenu before the Court essential for the disp0sal of rlre petition by ihe Court. The petitioner. an undertrial prisoner, filed a petition under Art. 32 for the issue ot' writ of habeas corpus. 1 he C'Jurt issued rule nisi but direc~ed that the petitioner need not be produced in person. On tbC question whether lhe pro· duction of the bod}' of the person detained was essential before the application for a writ of habea• corpus could be finally heard and disposed ol by the Court, HELD : (I) There is no'.hing in Art. 32 which requires that the body of the person dttained must be produced before an application for a writ of habeas corpus could b: 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 0.X.XXV, r. 4 of the Supreme Court Rules and ~he rule ni.ri could be. heard and an appropriate order passed in terms of 0.XXXV, r. S without requiring the body of the person detained to be brought before the Court. [63SF-GJ <2) Jn 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 practiee in England and the United States. ·the production of tbe body of the person detained was not a basic or essential requirement of a proceeding for a writ of habeas corpu3. [633-HJ The Supreme Court could examine the legality of the detention of the hear- ing of the rule nisi without requiring that the person detained be brought be· fore the Court, and if the detention is found unlawful, order him to be released forthwith. [634-F] . ( 3) The same procedure is set out in 0. XXXV, rr.4 and S read \Vith 0. XLVII, rr. I and 6 of the Supreme Court Rules. 0. XXXV, rr. I 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 retition 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 p ... rson 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 wi!h according .to law''. But 0. XLVII, r. 1 empowers the Court, for sufficient ca05e shown, to dispense with the require· ment9 of 0. XXXV, r. 4 and the Court may direct in an aporop· iate case that the body of the person detained need no• be produced in Court at the he~ring of the rule nisi. The same is the·cffect of O. XLVII, r. 6. Where such a direction is given the Supreme Court would hear the rule nisi w:th"ut the person d tained being brought before it and, as provided in 0. XXXV, r. 5 "If no cause i'i shown or if cause is shown and disallowed'~ pass an order that the p<>rson de- tain<"d be se• at liberty· and "if cause is shown and allowed" discharge the rule nisi. [634·G-H: 635 ACBJ (4) Though the petiti'lner had a fundamental right under Art. 3 and the Suprem~ Court is bound under Art. 32 ( 2) to issue appropriate direction order 0r writ for enfnrcement of such fundamental right, there is no obligation dn it to 14-L382SupCI/74 \ 622 SUPREME COURT REPORTS [ 1974 J 1 s.c.R. give ony particular kind of remedy to the petitioner. What should be the approp1iate remedy to be_ given is a matter for the Coui:t I() decide under _\n- 32(2). In cases of this' nature the Court may say thot it is not necessary for the petitioner I() be produced before !he Court and that it would bo sufficient 11nd nppropriate inst~ad to examine the validity of the detention wii.hout havini him brought before the Court, and if the detention is found I() be lawful, pass nn order oettinR him at liberty. [635 C-Dl [Nature and history of the writ of habeas corpus examined} ORIGINAL Jl(RJSDICTION : 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 petitio
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