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CRITICAL ANALYSIS ON WRIT OF HABEAS CORPUS

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 CRITICAL ANALYSIS ON WRIT OF HABEAS
CORPUS
ATEEA SHREEN RATRI, RUMANA HELALI AZADLIMA, ANISUR RAHMAN, TANIMA
ISLAM ALIF, MD. SHAREAR SARKER, JOITA SARKAR, SHALAHIN TARAQUE

3rd Year Students, Department of Law & Human Rights,

University of Asia Pacific, Dhaka, Bangladesh

Abstract :-
Purpose–The purpose of this paper is to analyses on writ of Habeas Corpus how the scope of this writ
arises and what are the remedies of this writ.

Design/methodology/approach– OSCOLA Quick Reference Guide have been used in this paper,
Using both primary and secondary data, i.e. Books, case Laws, legislations, and journal articles.

Findings– Everything has two part one in positive and another is negative, here we try to find all the
part of writ of Habeas corpus and give some recommendation for the Improvement of Writ of Habeas
Corpus.

Originality/value– General people who had no knowledge about writ of Habeas Corpus they could
get a batter knowledge about this writ and it’s also helpful for the law students for developing there
Understating on writ of habeas corpus . On this article we explain all the scopes and remedy with
Relevant case laws so it’s also helpful for the lawyers on court proceedings.

Key Words- Illegal detention, Question of Legality, Authority, Fundamental Rights, New and fresh
ground, Remedy.

1
 INDEX
NO. NAME OF PARTICIPATION Page-Number
THE
PARTICIPANTS
1. RUMANA 1. DEFINATIONS,
HELALI 2. FINDINGS , Page : 3-4
AZADLIMA 3. REMIDIAL GROUNDS OF THE
WRIT OF HABEAS CORPUS.
2. SHALAHIN
TARAQUE 4. HISTORICAL CONTEXT ,
5. OBJECTIVE OF THE WRIT Page : 4-5
OF HABEAS CORPUS.
3. JOITA 6. GROUNDS FOR THE WRIT OF
SARKAR
Page : 5-7
HABEAS CORPUS
7. NON-AVAILABILITY OF THE
PROTECTION OF THE WRIT
OF HABEAS CORPUS.
4. MD. 8. PROCEDURE TO APPLY FOR
Page : 7-9
SHAREAR WRIT OF HABEAS CORPUS,
SARKER 9. DUTIES ARISING FROM THE
APPLICATION OF WRIT OF
HABEAS CORPUS ,
10. REMEDY OF THE WRIT OF
HABEAS CORPUS.
5. ATEEA
SHREEN 11. MERITS OF WRIT OF HABEAS Page : 9-11
CORPUS.
RATRI

6. ANISUR
12. DEMERITS OF WRIT OF Page : 11-12
RAHMAN HABEAS CORPUS.

7. TANIMA 13. THE WRIT OF HABEAS

ISLAM ALIF CORPUS IN BANGLADESH
Page : 12-14
CONTEXT,
14. CONCLUSION AND
15. RECOMMENDATION.

2
 Introduction –
An American Economist said that “The State is a gang of thieves writ large – the most
immoral, grasping and unscrupulous individuals in any society.”

Writ Petition is a legal instrument of the superior courts for providing remedies to persons
against the arbitrary or illegal actions of any authority or the lower court. The literal meaning of
writ is a written order or a written command or precept or formal order issued by a competing
court in order to direct a person or persons to whom it is addressed to do or refrain from doing
some specific act1.

1. DEFINITION OF WRIT OF HABEAS CORPUS:

Writ of Habeas Corpus is an ancient writ under Common Law which indicates to have the body
before the Court. It is a kind of protection against unlawful and indefinite imprisonment which has
been developed in the form of order of the Court to release a person who has been detained
unlawfully. Basically it is issued to a detaining authority to submit the detained person before the
court in order to know the cause of detention; and if the detention is found to be illegal, then the
Court has authority to issue an order to set the person free. For Example - A detained person can
file The Writ of Habeas Corpus in The High Court Division of The Supreme Court of Bangladesh
as per Article 102(2)(b)(i) of The Constitution of The People’s Republic of Bangladesh in order
to be brought before the Judge for knowing the reason of detention.

2. FINDINGS FROM THE CONCEPT OF HABEAS CORPUS:

i) Writ of Habeas Corpus works as a protection in favor of personal liability and freedom
of individual.
ii) It is available against the unlawful and indefinite detention by public authority.
iii) The High Court Division has power to direct the authority for bringing the body of the
prisoner before The Court.
iv) Here the Court decides the legality of detention
v) The Court can direct the authority to release the prisoner if it is unlawful.

3. REMIDIAL GROUNDS UNDER THE WRIT OF HABEAS CORPUS:

i) An illegal restriction upon the petitioner’s liberty.
ii) Absence of Court Order of detention.
iii) Concealment of identity of the detaining authority.
iv) Hiding the location of custody.
v) Deficiency of plain, speedy and adequate remedy in Law.

1
Page 618-619 of Mahmudul Islam Book on Constitution of Bangladesh, 3 rd Edition.
3
 It is found in Aruna Sen vs Government of Bangladesh2 case that the detention of Chanchal
Sen by the Rakkhi Bahani was challenged through the writ petition under Article 102(2)(b)(i) of
the Constitution of The People’s Republic of Bangladesh by his mother after finding him in
miserable condition in the police custody where The High Court Division set a precedent against
unlawful and preventive detention.

4. HISTORICAL CONTEXT OF THE WRIT OF HABEASCORPUS:

It is hard to certainly identify the origin of the writ of Habeas Corpus as a variety of writs performed
some of the functions of this Writ before the establishment of Magna Carta in 1215.
The modern history of the writ as an instrument for the protection of personal liberty against the
arbitrary action of public authority was found from the reign of Henry VII (1485–1509) when it is
employed on behalf of persons imprisoned by the Privy Council. In its continuity, the writ was
fully established in the 17th century as the congenial procedure for checking the illegal
imprisonment of people by inferior courts or public officials.
In India, the jurisdiction to issue prerogative writs came with the establishment of Supreme Courts
at Calcutta, Bombay and Madras under the Regulating Act, 1773. On abolition of Supreme Courts
and establishment of High Courts, the said power had been conferred on High Courts. Accordingly,
the Supreme Court and all The High Courts have gotten power to issue a writ of Habeas Corpus
under Article 32 and Article 226 of The Constitution of India.
In Bangladesh, the jurisdiction to issue writ has been vested in the High Court Division under
Article 102 of the Constitution. In the case of filing a writ petition in the High Court Division,
there must be violation of fundamental right which is given in the Part III of the Constitution of
Bangladesh and the same has been emphasized and guaranteed by Article 44 of the said
Constitution. Article 102(2)(b)(i) of The Constitution of The People’s Republic of Bangladesh
is concerned with the Writ of Habeas Corpus for checking the illicit detention of people by the
public authority and illegal imprisonment by the inferior court.
It is found in the case of Sentu vs The Government of Bangladesh3 that the conviction and
sentence of 10 years imprisonment and fine, passed by the Trial Court under the section 3 of the
Explosive Substance Act, 1908 against Mokles, Mir and other accused in their absence was
declared illegal and unlawful by The High Court Division on Writ Petition filled by the accused
persons by showing the ground that it violated the provision of Section 27(6) of The Special
Powers Act, 1974.

2
Aruna Sen v. Government of Bangladesh (1975) 27 DLR (HCD) 122 . [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021].

3 Sentu vs The Government of Bangladesh , Writ Petition No. 2243 of 1997, Decided On: 27.10.1997 [online] Available at: https://www.bdlex.com/

[Accessed 17 May 2021].

4
 5. OBJECTS OF THE WRIT OF HABEAS CORPUS:
The main object of the writ of Habeas Corpus is to provide a quick and effective remedy against
illegal detention in order to release a person from it. Thus Lord Wright states concerning the object
Of the writ of Habeas Corpus that the incalculable value of habeas corpus is that it enables the
immediate determination of the right of the appellant’s freedom. In conclusion of the statement of
Lord Wright, it is found that if the court observes any illegality and unlawfulness in detaining
any person, then it can pass an order to release the person immediately. On the basis of this, it is
foundthat the writ of Habeas Corpus deals with the Question of Legality4.

5.1.WRIT OF HABEAS CORPUS ON QUESTION OF LAW:

When Courts provide a quick and effective remedy against illegal detention, the following issues
are raised in front of the Court:
i) Whether the person can issue the writ or not?
ii) Whether the subject is unlawfully detained by any public authority?
In order to file writ petition under Habeas Corpus, the person must illegally be detained with
showing no cause or with showing inappropriate cause. In such situation, either the prisoner
himself or any other person related to him can file application for the writ of Habeas corpus to The
High Court Division. But, the applicant cannot be a total stranger; rather it can be the Husband,
Wife, Father, Mother, Sister, Brother or a Friend. In addition, writ of Habeas Corpus is also issued
against the order of conviction which is given wholly without jurisdiction.

6. GROUNDS FOR THE WRIT OF HABEAS CORPUS5:

Writ of Habeas corpus generally file in the following grounds:
i) When a person is detained without any violation of Law.
ii) When a person is detention and not produced before the Magistrate within 24 hours.
iii) When a person gets detention which is unconstitutional.

i) A PERSON DETAINED WITHOUT ANY VIOLATION OF LAW:

Sometimes a person may be detained without any charge or without any conviction order given by
any competent Court, but on the apprehension in the mind of the Executive Authority that the
person may commit any act which is harmful to the public interest. For example - The government
authority can arrest anyone under The Special Powers Act, 1974 on the basis of their doubt that

4
Shalushravan singh., 2021. Online Legal Advice - Lawyers in India. [online] Available at:
< http://www.legalserviceindia.com/legal/article-3402-haebus
corpus.html?fbclid=IwAR1X5wRwDNx64pNkHiWvItJdKiV1eraHCPHJb62AkJMuRP7r6C-
IIr7fXxE#:~:text=Thus%2C%20the%20object%20of%20habeas,to%20punish%20the%20detaining%20authority>
[Accessed 17 May 2021].
5
IPleaders ,2021 . [online] Available at: https://blog.ipleaders.in/habeas-corpus-
aspects/?fbclid=IwAR1qJR50AQ8IRWHVU1GdpSkJERmE3LCuiv6KHye8lSiR10gO2hDp0v5ydVI [Accessed 17 May 2021].
5
 the person may be involved in any illegal activities. But if the person is not submitted before the
court thereafter for the justification of his detention, then the opportunity of writ of Habeas Corpus
has created in favor of the detained person.
ii) A PERSON DETAINED AND NOT PRODUCED BEFORE THE
MAGISTRATE WITHIN 24 HOURS:
When any Law Enforcement Agency of The Government arrest a person, they become dutiful to
represent the person in front of the Magistrate within 24 hours which is reflected in Article 35 and
Article 33 of The Constitution of Bangladesh, Section 154 of The Code of Criminal Procedure,
1898 and in the case of BLAST and Others vs Bangladesh and Others. If the direction is not
followed properly then the opportunity of writ of Habeas Corpus has been created.

iii) A PERSON GETS DETENTION WHICH IS UNCONSTITUTIONAL:

The Right to Life and Personal Liberty is protected as one of the Fundamental Rights in favor of
the citizens of Bangladesh under Article 32 of the Constitution which shall not be violated by
any person or any authority by going beyond Law. Thus a person is authorized to live his/her life
in their own way by maintaining Laws and Order of the State for the time being in force. In the
case of absence of adequate remedy to the violation of any of the Fundamental Rights, the
protection under writ petition shall be disclosed.
It is found in Dr. Shipra Chaudhury vs Bangladesh 6case that petitioner Shipra, being the
cousin of the detainee, tried to rescue her from emotional and psychological pressure, physical
torture anddetention caused by her parents due to be married against their will through the writ of
Habeas Corpus as the administrative authority served no positive action towards her compline
where the Court mentioned freedom of every human being irrespective of sex as universally
recognized and forced marriage as not permissible.

7. NON-AVAILABILITY OF THE PROTECTION OF

THE WRIT OF HABEAS CORPUS:
SUCCESSIVE APPLICATION THE TIME OF EMERGENCY

i) SUCCESSIVE APPLICATION:
It was accepted in England for many years that an unsuccessful application could go from Judge
to Judge and from Court to Court successively and got to be renewed on the same evidence and
on the same grounds for the writ of Habeas Corpus. But, now those earlier view was overruled. In
present time, a person has no right to present successive application for the writ of Habeas Corpus
if there are no new and fresh ground.

6
Dr. Shipra Chaudhury vs Bangladesh [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021]
6
 ii) THE TIME OF EMERGENCY:
At the time of emergency, the violation of fundamental does not arise any authority in favor of the
people to legally fight for it. Accordingly, no person can exercise the right to file an application
for the writ of Habeas Corpus in The High Court Division during the time of Emergency.

8. PROCEDURE TO APPLY FOR WRIT OF HABEAS CORPUS7:

Habeas corpus is a procedure by which The Court may review the legality of an individual's
incarceration. There are some series of actions which shall be conducted in a certain manner in the
case of claiming protection under the writ of Habeas Corpus.
8.1. CONSIDERABLE MATTER IN THE COURT:
When an Application is submitted to the Court for the Writ of Habeas, the Court may take the
following matters under consideration
i) Consider the fact and circumstances from the attachment.
ii) Behold the prima facie case.
iii) Issue Rule Nisi or not.

Every Application for the writ of Habeas Corpus must be attached by affidavit which is stating the
facts and circumstances leading to the Application. Thereafter, the court tries to behold the prima
facie case of the writ on what it is depended to be accepted or not to be accepted. After accepting
the Application for writ, it may further issue the Rule Nisi in order to direct the person or authority
to show cause as to why rule should not be made absolute and the person who are in imprisonment
should not be released from detention. Then the court will figure out the merits of the case and
pass an appropriate judgment on a fixed date. If the court decides that the detention was unlawful,
then it will issue an Order and instruct the detaining authorities to release the detainee immediately.
On the other hand, when the court found that the detention was justified, then the Rule Nisi will
be dismissed. In exceptional circumstance, a petition for writ of Habeas Corpus is maintainable
even if the person is not in the prison. In such case, it will fully be relied on the decision of the
concerned Court taking with extreme care, caution and circumspection.
It is found in Government of Bangladesh vs Ahmed Nazir8 case that the petitioner Ahmed
Nazir filed an Application for writ petition by challenging the legality of the order of detention of
A.K.M. Golam Kabir under Section 3(1/a) of the Special Powers Act, 1974. Prior to the order
passed by the Vacation Bench on the 12th September, 1974 enlarging the detainee on bail for a
period of two months and fifteen days on the ground of his illness, another Bench had issued a
Rule Nisi on 22 July, 1974. Thus the appeal was filed on the ground that whether The High

7 Shalushravan singh., 2021. Online Legal Advice - Lawyers in India. [online] Available at:
< http://www.legalserviceindia.com/legal/article-3402-haebus corpus.html?fbclid=IwAR1X5wRwDNx64pNkHiWvItJdKiV1eraHCPHJb62AkJMuRP7r6C-
IIr7fXxE#:~:text=Thus%2C%20the%20object%20of%20habeas,to%20punish%20the%20detaining%20authority> [Accessed 17 May 2021].
8 Government of Bangladesh vs Ahmed Nazir [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021]

7
 Court Division has jurisdiction to grant bail to a person against whom an order of detention was
passed during pendency of his application under aforesaid Article. However, question of security
of State is a matter of concern to Judiciary as it is an organ of the State through which it
functions. Thus in dealing with an Application for bail of a person, who is detained on account
of his alleged prejudicial activities, The High Court Division dismissed it.

8.2. THE CONSEQUENCE OF DELAYING IN FILLING APPLICATION FOR

THEWRIT OF HABEAS CORPUS:
Delay in applying for a writ of Habeas Corpus does not infringe the right of Applicant from relief.
Our Constitution directs that the Right of Personal Liberty is one of the fundamental rights in Part-
III of The Constitution which will not be waived. Furthermore, a wrongful detention or arrest of a
person is considered as continues wrong against a person and the injury lasts until it is remedied.
Thus the writ petition of Habeas Corpus cannot be dismissed due to delay.
8.3. GROUNDS OF REFUSAL OF THE APPLICATION CONCERNING WRIT
OFHABEAS CORPUS:
i) At the point when writ of Habeas Corpus is remedial and not punishable in nature.
ii) At the point when the legality of the detention must be decided by the court with
reference to the date of return of the rule and not with reform on the date of such
application is made.
iii) At the point when detainer does not go under the regional surface of the court.
For example - Someone who is detained in India cannot apply for writ in Bangladesh.
iv) At the point of Emergency.
v) At the point when the court already refused the Application.

9. DUTIES ARISING FROM THE APPLICATION OF WRIT OF HABEAS

CORPUS9:

DUTY OF APPLICANT DUTY OF THE STATE DUTY OF THE COURT

i) DUTY OF APPLICANT: When an Application is filed for praying writ of Habeas

Corpus, the full fact must be stated in the Petition.

ii) DUTY OF THE STATE: Whenever any act of detention or arrest of a person is
challenged, it is the duty of the State to direct all the relevant action with a truthful,
honest and ultimately independent manner

9
Shalushravan singh., 2021. Online Legal Advice - Lawyers in India. [online] Available at:
< http://www.legalserviceindia.com/legal/article-3402-haebus corpus.html?fbclid=IwAR1X5wRwDNx64pNkHiWvItJdKiV1eraHCPHJb62AkJMuRP7r6C-
IIr7fXxE#:~:text=Thus%2C%20the%20object%20of%20habeas,to%20punish%20the%20detaining%20authority> [Accessed 17 May 2021].
8
 iii) DUTY OF THE COURT: An individual’s freedom is one of the most cherished
object of human life and judges have played a historic role in defending such freedom
with initiative and dedication expect in the time of emergency. Where a person is
illegally detained, then the court has a duty to protect him or her liberty against any
seizure. Moreover, the duty of the court is to strike a balance between the need to
protect the community on the one hand and the need to protect the liberty of the citizen on the
other.

10. REMEDY OF THE WRIT OF HABEAS CORPUS:

Ordinarily, while exercising powers under Article 44 or under Article 102 of The Constitution of
The People’s Republic of Bangladesh, the court will not award compensation. In appropriate cases,
the court may award monetary compensation to the person who has been illegally detained.
Basically, this is the discretionary power of the court as there is no legal obligations. If the power
of the court is limited to the order of releasing a person from illegal detention only, then it will be
deprived from its significant content. Violations of that right can be reasonably prevented, and one
of the ways to comply with Article 32 of the Constitution is to indulge violators in providing
monetary compensation. Thus the Court may award monetary compensation to the person who has
been illegally arrested or detained this which is found in the case of Rudal Shah vs State of Bihar
where 35,000 Rupee by way of compensation was given after acquittal order for fourteen years
detention in jail.

IMPACT OF WRIT OF HABEAS CORPUS

MERITS DEMERITS

11. MERITS OF WRIT OF HABEAS CORPUS10:

11.1. It provides security towards the liberty of private individual. As per Article 102 (2)
(b) (i) of The Constitution of The People’s Republic of Bangladesh, it is a
procedure where an individual’s custody must be satisfactory before the court so
that the court can give the direction to the particular person or authority to give an
explanation which shall be valid and not to be vogue, and definite that on what
ground the individual was being detained. In this process, if the explanation
becomes satisfactory and evidential, then the detention will be sustainable,
otherwise such individual has to be released immediately either with reasonable

10
Page 753-771 of Mahmudul Islam Book on Constitution of Bangladesh, 3 rd Edition
9
 compensation or to such an extent.
11.2. It controls the arbitrary power of the executive authority in the case of arrest and
detention. The Executive Authorities are protected against mistake of Fact under Section
76 of The Penal Code, 1860 by which they may be excused from liability of arresting,
detaining or hurting someone mistakenly. But, the writ of Habeas Corpus has exposed
opportunity to stand against this lawfully which is in some extend controls the
arbitrariness of executive power as they at least become accountable about the arrest and
detention.

11.3. It reduces unauthorized arrests. As an individual can seek for legal protection
against unauthorized arrest from The High Court Division of The Supreme Court of
Bangladesh in absence of adequate remedy where the concerned authority will be bound
to furnish the ground before the court, thus they may think twice about disgrace before
executing unauthorized arrest against any innocent person.

11.4. It works as a safeguard against unreasonable and indefinite detention. The great
writ of Habeas Corpus is a kind of legal remedy where a person or an authority become
bound to disclose the definite reason behind arrest or detention so that no person has to be
imprisoned unlawfully for a very long period of time.

It is found in the case of Shameem vs Bangladesh11 that the brother of petitioner

namely Shaheen Shorab was detained under The Special Powers Act, 1974 on 9
June, 1994 for being accused under Section 19 (A) and (F) of the Arms Act, 1878
where the detention of him was extended from time to time. The claim of the
petitioner was that his brother was victimizes by double jeopardy as a specific
criminal case had already been started against him for the same issue towards what
he was further detained under The Special Powers Act, 1974. In such case the
grounds of detention of Shaheen was found to be vague, indefinite and done without
lawful authority for what he was ordered to be released forthwith.
The Application for Habeas Corpus got top priority over all other business and be
expeditiously disposed of in the above mentioned case where it is no longer
common to direct the body of the prisoner to be produced before the court only but
the respondents having the custody of the prisoner must specify the cause of
detention and discharge the burden of proof with lawful justification.

11.5. It acts as shield against ill-motive where a person may be arrested for fulfilling the
financial urge of dishonest executive authority, personal bias, political pressure etc. as the
cause has to be shown before the court if a person pleads for the remedial right of Habeas
Corpus.

11.6. It in some extend protects people from unauthorized abduction and confinement as

11
Shameem vs Bangladesh [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021]

10
 it is not infrequent in our society that some people try to abduct any person because of
personal enmity through acting like Law Enforcement Authority. Such type of fact can be
disclosed and the abducted person may be rescued through seeking protection of the writ
of Habeas Corpus from the competent court where the court may direct the actual
authority to find out such person by using their power and resource.
There is a monumental factor to be mentioned that the protection of the writ of Habeas
Corpus is only available when any of the fundamental rights of a person is violated or
restricted unlawfully towards which there is no legal remedy to be served or such
remedy is denied to be served.

12. DEMERITS OF WRIT OF HABEAS CORPUS12:

12.1. Sometimes it defeats the right of an individual to be remedied. Although the writ
of Habeas Corpus works as a safeguard against unlawful arrest and detention by
compelling the concerned authority to furnish the reason behind their action, however,
filing application in this ground without locus standi may create blockage it the way of
getting Justice.

12.2. Sometimes it creates multiplicity of cases in The High Court Division as people
applies for this remedial right lavishly because of its smooth availability even after
possessing other remedial rights.

12.3. Sometimes it creates hindrance in the investigation process of some sensitive cases
where the Executive Authorities needs to lock up their steps of investigation for
protecting the security of the state and welfare of the citizens as they become compel to
be accountable and produce the body of the accused before the court because of the writ
of Habeas Corpus.

12.4. The scope of this right is limited as it only provides protection against unlawful
arrest and detention, but not against unfair trial.

12.5. The remedy comes out of the writ of Habeas Corpus is not become supportive
sometimes as it may badly impact our social norms, culture and ethical ground at times
through being rigid in its nature.
A great instance of this demerits is the case of Muhammad Latif vs Akbar Ali13 where it was
found that Mr. Latif tried to recover the custody of his minor daughter Mst. Najma Kausar by
applying for the writ of Habeas Corpus after being ignored by the concerned authority. In such
case, he alleged that his daughter was being confined and detained by Akbar Ali where she was

12
Page 753-771 of Mahmudul Islam Book on Constitution of Bangladesh, 3rd Edition
13
Muhammad Latif vs Akbar Ali [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021]

11
 further found to be married with Akbar Ali. But the court declared that though Najma was in her
early teens, so she was considered to be unlawfully detained by Akbar Ali. Accordingly, she was
sent back to her parents.

Although marrying a minor is not lawful, however, detaching a girl form her husband is not
morally accepted in our society; over and above, the consequence of such decision may not be
good.
13. HABEAS CORPUS (BANGLADESH CONTEXT):
Habeas Corpus is a remedial writ where an individual gets legal right of acquittal against
any sort of vague, indefinite and illegal detention. It is not only a process where an
individual gets to be discharged form unlawful detention, moreover, it works as a
preventive instrument against unlawful arrest, detention and harassment. In Bangladesh,
the writ of Habeas Corpus has preserved as a Constitutional protection discursively in
Article 102 (2) (b) (i) of The Constitution. It is also ensured by Section 491 of The Code
of Criminal Procedure, 1898.

i) USEFULLNESS OF HABEAS CORPUS UNDER THE CONSTITUTION:

As it is mentioned earlier that the writ of habeas corpus is enshrined in the article
102 (2) (b) (i) of The Constitution of Bangladesh, but it is not directly referred as a
writ of Habeas Corpus, rather it gives an indirect indication regarding the protection
of illegal detention of an individual whoever is in private or public custody. In
addition, a prominent case is referred here in this context which is Abdul Latif
Mirza vs Government of Bangladesh14. In such case, it was found that Abdul
Latif Mirza was detained by the authority due to denouncing the Fundamental
Principles of the Government of Bangladesh which was established by Law, but
when he filed writ petition under Article 102 (2) (b) (i) of The Constitution, the
court declared that the ground of the detention of him was not clear with
mentioning that the Principle of Natural Justice is universal in nature.

ii) USEFULLNESS OF HABEAS CCORPUS UNDER THE STATUTE:

As it is mentioned on the above that in our country statue there is provision regarding the
principle of habeas corpus which is prescribe as in the section of 491 of The Code of
Criminal Procedure, 1898. Here it is define that the High Court Division within its
Appellate Jurisdiction may direct the authority to bring the individual who is detained in
their private or public custody. It is also mentioned on that if it is found out that the custody
is improper or illegal then that individual will be free. However, this provision is preserved
14 Muhammad Latif vs Akbar Ali [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021]

12
 in our statue because of the state Emergency when Constitutional provision is withheld.
That time people can claim their needs by using this provision under Section 491 of the
Code of Criminal Procedure, 1898 where judges are authorized to consider such type of
Application. Despite that nowadays very few people are applying for Habeas Corpus to get
the remedy under this provision.
iii) USEFULLNESS OF HABEAS CORPUS IN RESPECT OF CHILDREN’S
CUSTODY:

In Bangladesh, there is a very recent case named as Bangladesh Jatiyo Mahila Ainjibi
Samity vs Ministry of Home Affairs15 where the court examine the scope of Habeas
Corpus regarding children custody. The High Court Division applied writ of Habeas
Corpus to bring the 7 children in the court from a private custody where a woman
claimed herself asthe mother of those children. Hence the Bench declared that by using writ
of Habeas Corpus that it is concerned about whether the custody of children should be
entrusted to that party whoever is welfare for the child not to that one or another party
who is in just legal right. This prominent case has set a good Principle in respect of
custody of children by using writ of Habeas Corpus.

14. CONCLUSION:
In our country, the Executive Authority has scope to act arbitrarily where this writ works
like a safeguard against unlawful arrest and detention, and other kinds of harassment in the
police custody as such authority become bound to show the cause of conduct before the
court which has to be reasonable. Basically, the process of Habeas Corpus is a kind of duty
of the state to furnish the proper ground of its action before the Court as well as before its
citizens which supports the principle of Democracy. Further, the practice of allowing the
writ of Habeas Corpus also upholds coordination between the Executive and Judiciary
organs of the Government where they become dutiful to be accountable and reasonable
towards their action and order. Moreover, some cases under Habeas Corpus has
materialized some magnificent Principles; such as – Principle of Natural Justice which
protects the personal liberty of people in many ways. It should be remembered that Judicial
system has to be a proper mechanism where the citizens of a country get the rightful Justice.
It is needless to say that the writ of Habeas Corpus has been successfully enshrined in the
judicial system of Bangladesh as well as of other countries in the World because of its
remedial nature against unlawful action of the power-holders. In order to uphold Rule of
Law and Good Governance in the society, the judicial system has to be designed in such a
way where no rights of individuals will be defeated. In such case, it is undeniable that THE
GREAT WRIT OF HABEAS CORPUS works as a magic wand in favor of the protection
of Fundamental Rights of individuals; such as - Right to personal liberty. It also works
against the abuse of Law and power.

15 Bangladesh Jatiyo Mahila Ainjibi Samity vs Ministry of Home Affairs [online] Available at: https://www.bdlex.com/ [Accessed 17 May 2021]

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 15. RECOMMENDATIONS:

1. People should be made aware about the nature and jurisdiction of the
writ of HabeasCorpus so that they can restraint them from urging
protection in wrong ground.
2. The remedy in the writ of Habeas Corpus should be given by using
Equity, Reason andJustice.

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