Habeas Corpus Section 491 of CrPC is one of the most important and generally considered to be used to get the recovery of person illegally detained in private or public custody.
But if we look at 491 (1) clause (b) bare reading is clear , THAT A PERSON ILLEGALLY OR IMPROPERLY DETAINED IN PUBLIC OR PRIVATE CUSTODY,
Here the sentence,
“improperly detained in private custody ” can be attributed towards the custody of minors with any of parents or relatives.
The Honorable High Court has lot of times used 491 to get the proper custody of minors by considering minor’s welfare.
(1) Custody of minors can be by petitioner under special circumstances.
(2) Custody of minor under 491 is Temporary in nature,
subject to final custody under section 25 of guardian and wards act.
3) CASE PENDING BEDFORE GUARDIAN JUDGE.
491 application can be used to get the minor custody even the case of minor is pending before the guardian Judge, 2013 MLD 1625
(4) AGAINST THE INTERIM CUSTODY ORDER UNDER SECTION 12 of guardian and wards act.
491 application can be used against the INTERIM CUSTODY order passed by guardian Judge under section 12 of guardian and wards act.
PLD 2014 karachi 598
491 can not be used against the order of final custody of minors made under section 25 of guardian and wards act.
Habeas Corpus Important Law Cases & Judgments
Proceedings of summary character. Under section 491, Cr.P.C. detailed inquiry or recording of conclusive findings about disputed questions of law and fact are not within the scope of section 491. PLJ 1976 Lah. 155 Mst. Bachino v. Abdul Karim ASI.
Not discretionary writ but a writ of right, but when a petition is mala fide and for the furtherance of illicit love affair Court dismissed the petition. (DB) 1975 P.Cr.LJ 14444 Bashir Ahmed v. Muhammad Hassan Bhatti etc.
Relief under normal law available. High Court may refuse to exercise its power under section 491, Cr.P.C. (DB) PLD 1975 Kar. 118 Ghulam Muhammad v. Fakir Muhammad etc.
Alternative remedy if available and considered adequate is normally to be treated as a bar to remedy by way of Habeas Corpus. (DB) PLD 1974 Kar. 485 Imdad Hussain v. Noor Hussain etc. PLJ 1974 Cr. C. (Kar.) 509.
Belated application does not make difference. Where the custody of a person, whether public or private is found to be completely illegal and without jurisdiction, the question that the petitioner has come to the Court after some delay is absolutely irrelevant. If it comes to the notice of the High Court that some person is illegally detained it is the duty of the High Court to interfere at once and release the detenu. (DB) PLD 1957 Pesh. 41 Bahadar Zaman v. Crown.
Delay of 8 months not sufficient for not exercising powers u/S. 491, Cr.P.C. (DB) PLJ 1981 Cr. C. (Kar. )120 Mst. Salami v. Mir Hassan.
Habeas Corpus petition becomes infructuous if the detention is legalised subsequently. (DB) PLD 1958 Pesh. 38 Qadir.
Orders under Habeas Corpus must be executed by persons of complete integrity. (SC) PLD 1964 SC 186 Abdul Hamid.
Fresh application on new grounds is not barred under section 491, Cr.P.C. (ILR) 26 Lah. 573 dissented from). Sweeping statement that the principle of res judicata or finality of judgment does not apply to judgments/decisions/orders under Art. 199 (1) (b) (i) of the Constitution is not correct. Question raised before Supreme Court
and decided by it cannot be reconsidered by High Court in writ jurisdiction. (FB) PLD 1976 Lah. 396 Muhammad Ajmal Khan v. Lt. Col. Muhammad Shafaat etc. Fresh application. Prior application refused. Subsequent application to the judge of the same Court is competent and must be disposed of on merits. (PC) AIR 1928 PC 300 Eshugbayi Eleko v. Government of Nigeria.
“Detained”. Government’s order under section 5 (1) (b), West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960) requiring a person to “reside and remain” within the limits of a village amounts to detaining such person within the meaning of section 491 (1) (b), Cr.P.C. (FB) PLD 1963 Lah. 109 Muhammad Anwar v. Government of West Pakistan.
Valid order of detention produced before disposal of the application. Release cannot be ordered though there was no valid cause for detention previously. (DB) PLD 1950 Pesh. 22 Saleh Muhammad v. Crown. High Court can go into the question of whether a warrant purporting to be issued under the Bengal State Prisoners Regulation, 1818 was truly a warrant authorised by the Regulation. (FB) PLD 1955 Lah. 585 Muhammad Anwar Bahari v. Crown.