CHAPTER
XXVIII
RULES
FOR THE ISSUE OF WRITS OR ORDERS IN THE NATURE OF
WRITS
OF HABEAS CORPUS UNDER ARTICLE 226 OF THE
CONSTITUTION
OF INDIA
1.
Applications for writs of Habeas Corpus under Article 226. — All applications for writs or orders in the nature of
writs of Habeas Corpus under Article 226 of the Constitution of India shall be
made to the Division Bench taking criminal business of the Appellate Side of the
High Court duly verified by oath or affidavit setting forth the circumstances
under which the writ or order is sought.
2.
Rule nisi on prima facie case. — If
such Court is of opinion that a prima facie for granting the application
is made out, a rule nisi shall be issued calling upon the person or
persons against whom the order is sought to appear on a day to be named therein
to show cause why such order should not be made and at the same time, if the
Court so directs, to produce in Court the body of the person or persons alleged
to be illegally or improperly detained then and there to be dealt with according
to law:
Provided
that a Single Judge may grant a rule nisi if the conditions specified
above are fulfilled; but he shall not pass any final order on the application.
3.
Order on hearing of rule. — On
the return day of such rule, or on any day to which the hearing thereof may be
adjourned, if no cause is shown, or if cause is shown and disallowed, the Court
shall pass an order that the person or persons improperly detained shall be set
at liberty or delivered to the person entitled to their custody, If cause is
allowed, the rule shall be discharged.
4.
Service of writs. — Where
the place of detention is known the High Court writ shall be served upon the
jailor with a copy to the detaining authority. Where the place of detention is
not known, the writ should be served upon the detaining authority. But an
attempt should be made by the Office to find out where the place of detention
is; and if the place is ascertained, then a copy of the writ shall be served
upon jailor.
As
far as possible, writs in Bombay should be served personally.
5.
Costs of rule in discretion of Court. — In
disposing of any such rule, the Court may, in its discretion, make an order for
the payment by one side or the other of the costs of the rule.
6.
Procedure as to evidence to be recorded. — The
Court may, if necessary, direct a Court of Session or a Magistrate to take
evidence as provided in section 391 of the Criminal Procedure Code.
7. Procedure in case of difference of opinion. — In case of difference of opinion between the Judges composing the Division Court, the procedure laid down in section 392 of the Code of Criminal Procedure shall be followed.