You are on page 1of 16

Article 32.

Remedies for enforcement of rights conferred by this Part

What are the constitutional remedies?

(1) The right to mo e the !u"reme #ourt by a""ro"riate "roceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The !u"reme #ourt shall ha e "o$er to issue directions or orders or $rits% including $rits in the nature of habeas cor"us% mandamus% "rohibition% &uo $arranto and certiorari% $hiche er may be a""ro"riate% for the enforcement of any of the rights conferred by this Part.

(3) Without "re'udice to the "o$ers conferred on the !u"reme #ourt by clauses (1) and (2)% Parliament may by la$ em"o$er any other court to e(ercise $ithin the local limits of its 'urisdiction all or any of the "o$ers e(ercisable by the !u"reme #ourt under clause (2).

()) The right guaranteed by this article shall not be sus"ended e(ce"t as other$ise "ro ided by this #onstitution.

According to article 13 fundamental rights are enforceable and any la$ inconsistent $ith a *undamental Right is oid. Article 13 is the +ey "ro ision as it ma+es *undamental Right 'usticiable. Article 13 confers a "o$er and im"oses a duty and an obligation on the courts to declare a la$ oid if it is inconsistent $ith a fundamental right. Article 32 confers "o$er on the !u"reme #ourt to enforce fundamental rights.

,aryao . !tate of -ttar Pradesh% .A/-0!#0111201231 4 A5R 1231 !# 1)674 1232 (1) !#8 7124 (1232) 1 !#R 67). The !u"reme #ourt obser ed that the fundamental rights are included not only to "rotect indi idual9s rights but they are based on high "ublic "olicy. :iberty of the indi idual and the "rotection of the *undamental Rights are the ery essence of the democratic $ay of life ado"ted by the #onstiution and it is the "ri ilege and the duty of this court to u"hold those rights. This $ould naturally refuse to circum ent them or to curtail them e(ce"t as "ro ided by the #onstitution itself.

Premchand ;arg . <(cise #ommissioner% -ttar Pradesh% .A/-0!#011=201232 4 A5R 1233 !# 2234 (1233) 2 !#A 1264 (1233) !-PP 1 !#R ==6. The !u"reme #ourt has described the significance of article 32 in the follo$ing $ords4>

?The *undamental Rights to mo e this court can therefore be a""ro"riately described as the cornerstone of the democratic edifice raised by the #onstiution. That is $hy it is natural that this court should regard itself as the "rotector and guarantor of *undamental Rights and should declare that it cannot% consistently $ith the res"onsibility laid u"on it% refuse to entertain a""lications see+ing "rotections?.

223. Po$er of @igh #ourts to issue certain $rits

(1) /ot$ithstanding anything in article 32 e ery @igh #ourt shall ha e "o$er% throughout the territories in relation to $hich it e(ercises 'urisdiction% to issue to any "erson or authority% including in a""ro"riate cases% any ;o ernment% $ithin those territories directions% orders or $rits% including $rits in the nature of habeas cor"us% mandamus% "rohibition% &uo $arranto and certiorari% or any of them% for the enforcement of any of the rights conferred by Part 555 and for any other "ur"ose.

(2) The "o$er conferred by clause (1) to issue directions% orders or $rits to any ;o ernment% authority or "erson may also be e(ercised by any @igh #ourt e(ercising 'urisdiction in relation to the territories $ithin $hich the cause of action% $holly or in "art% arises for the e(ercise of such "o$er% not$ithstanding that the seat of such ;o ernment or authority or the residence of such "erson is not $ithin those territories.

(3) Where any "arty against $hom an interim order% $hether by $ay of in'unction or stay or in any other manner% is made on% or in any "roceedings relating to% a "etition under clause (1)% $ithout>

(a) furnishing to such "arty co"ies of such "etition and all documents in su""ort of the "lea for such interim orderA and

(b)

gi ing such "arty an o""ortunity of being heard%

ma+es an a""lication to the @igh #ourt for the acation of such order and furnishes a co"y of such a""lication to the "arty in $hose fa our such order has been made or the counsel of such "arty% the @igh #ourt shall dis"ose of the a""lication $ithin a "eriod of t$o $ee+s from the date on $hich it is recei ed or from the date on $hich the co"y of such a""lication is so furnished% $hiche er is later% or $here the @igh #ourt is closed on the last day of that "eriod% before the e("iry of the ne(t day after$ards on $hich the @igh #ourt is o"enA and if the a""lication is not so dis"osed of% the interim order shall% on the e("iry of that "eriod% or% as the case may be% the e("iry of the said ne(t day% stand acated.

()) The "o$er conferred on a @igh #ourt by this article shall not be in derogation of the "o$er conferred on the !u"reme #ourt by clause (2) of article 32.

WR5T 'urisdiction B* @5;@ #B-RT

<("lain the $rit 'urisdiction of @igh #ourt

Article 223 em"o$ers @igh #ourt to issue $ithin their territorial 'urisdiction directions orders% or $rits including $rits in the nature of habeas cor"us% mandamus% "rohibition% &uo $arranto and certiorari for the enforcement of fundamental rights or for any other "ur"ose. #lause ()) "ro ides that the "o$er #onferred on the @igh #ourt shall not be in derogation of the "o$ers conferred on the !u"reme #ourt by clause (2) of article 32. Peo"le are% therefore% granted double "rotection in cases of iolation of fundamental

rights. They can directly a""roach the !u"reme #ourt under article 32 or @igh #ourt under article 223.

Relation bet$een Articles 32 and 223

<("lain the relation bet$een articles 32 and 223

(1) Remedy under article 32 is itself a fundamental right and therefore% normally% the court cannot refuse to entertain the a""lication. 5n Romesh Tha""ar . !tate of .adras% .A/-0!#0111301261 4 A5R 1261 !# 12) 1261 !#8 )1=4 61 #r :8 161)4 1261 !#R 62)% Patan'ali !hastri% 8.% deli ering the ma'ority 'udgment obser ed4

?The article 32 does not merely confer "o$er on the court as article 223 does on the @igh #ourts to issue certain $rits for the enforcement of the rights conferred by Part 555 or any other "ur"ose as "art of its general 'urisdiction. Article 32 "ro ides a remedy for the enforcement of those rights and this remedial right is itself made a fundamental right by being included in Part 555. This court is thus constituted a "rotection and guarantor of fundamental rights and it cannot consistently $ith the res"onsibility so laid u"on it.?

(2) The 8urisdiction of the !u"reme #ourt is throughout the territory of 5ndia but the territorial 'urisdiction of the @igh #ourt is not so $ide. A @igh #ourt can entertain a "etition only if the cause of action arises $ithin its local limits.

(3) The remedy "ro ided under article 32 is a ailable only for the enforcement of fundamental rights guaranteed in Part 555. The @igh #ourt9s 'urisdiction under article 223 in this sense is $ider. They are em"o$ered to grant remedy under article 223 for enforcement of fundamental rights or for any other "ur"ose.

,efine ?$rit of certiorari?. <("lain the grounds on $hich it can lie $ith the hel" of rele ant case la$s

The &uestion $hether a 'udgment of the @igh #ourt under article 223 $ill attract the "rinci"le of res 'udicata under article 32 is discussed later.

(1) Writ of #ertiorari.>

The $rit of certiorari is an order of the @igh #ourt issued to inferior courts% tribunals or authorities to transmit to it the record of "roceeding "ending $ith them for scrutiny and if necessary% for &uashing the same. 5t is obser ed by At+in% :.8. that the $rit of certiorari may issue ?$hene er any body of "ersons ha ing legal authority to determine &uestions affecting the rights of sub'ects% and ha ing the duty to act 'udicially% act in e(cess of their legal authority.?

Radheshyam Chare . !tate of .adhya Pradesh% .A/-0!#011160126= 4 A5R 1262 !# 1174 1262 !#8 34 1262 /ag :8 )24 1262 .P:8 1=64 .A/-0!#011160126= 4 1262 !#R 1))1. The !u"reme #ourt obser ed that it consists of four com"onents iD% (a) a body of "ersonsA (b) ha ing legal authorityA (c) to determine &uestions affecting the rights of sub'ectsA and (d) ha ing the duty to act 'udicially.

5n determining the 'urisdiction of $rit of certiorari% the courts in 5ndia ha e some time been mainly guided by the "rinci"le laid do$n in /a+udda Ali . 8ayaratne% A5R 1261 A# 33. The !u"reme #ourt sim"ly demolishes the order of the inferior tribunal $hich it consider to be $ithout 'urisdiction or "al"ably erroneous% but it does not substitute its o$n ie$s for those of the inferior tribunal.

Pro ince of Eombay . Chushaldas !. Ad ani% .A/-0!#0113)01261 4 A5R 1261 !# 2224 1261 !#8 )614 =3 #:8 3314 1261 !#R 3214 (1261) 2 .:8 713. The !u"reme #ourt held that an error of la$% $hich is a""arent on the face of records can be corrected. The !u"erior #ourt sim"ly demolishes the order of the inferior tribunal $hich it consider to be $ithout 'urisdiction.

Writ lies on 8udicial Eodies.>

This $rit can be a ailed of only to remo e or to ad'udicate u"on the alidity of 'udicial acts. The e("ression 9'udicial acts9 include the e(ercise of &uasi>'udicial functions by administrati e bodies or authorities or "ersons obliged to e(ercise of &uasi>'udicial functions. Eut administrati e bodies or authorities or "ersons obliged to e(ercise such functions are used in contrast $hich are "urely ministerial acts. The !u"reme #ourt has

laid do$n t$o "ro"ositioning for ascertains $hether an authority is to act 'udicially>

(1) 5f the statute em"o$ers an authority to decide dis"utes arising out of a claim made by one "arty under the statute% $hich claim is o""osed by another "arty% then "rima facie% and in the absence of anything in the statute to the contrary it is the duty of the authority to act 'udicially and the decision of the authority is a &uasi>'udicial actA and

(2) 5f a statutory authority has "o$er to do any act $hich $ill "re'udicially affect the sub'ect% then although there are not t$o "arties a"art from the authority and the contest is bet$een the authority "ro"osing to do the act and the sub'ect o""osing it% the final determination of the authority $ill be a &uasi>'udicial act "ro ided the authority is re&uired by the statute to act 'udicially.

;rounds on $hich $rit can be issued.>

The $rit of certiorari is issued to a 'udicial or &uasi>'udicial body on the follo$ing grounds>

(a)

$here there is $ant or e(cess of 'urisdiction%

(b) $here there is a iolation of "rocedure or disregards of "rinci"les of natural 'ustice%

(c) fact.

$here there is error of la$ a""arent on the face of the record but not error of a

(a) Want of or e(cess of 'urisdiction.>

The $rit of certiorari is issued to a body "erforming 'udicial or &uasi>'udicial function for correcting errors or 'urisdiction% as $hen an inferior court or tribunal acts $ithout 'urisdiction% or in e(cess of it% or fails to e(ercise it. The $ant of 'urisdiction may arise

from the nature of the sub'ect>matter so that the inferior court had no authority to enter on the en&uiry or u"on some "art of it.

(b) *or correcting error of la$ a""arent on the face of record.>

The $rit is also issued for correcting an error of la$ a""arent on the face of record. 5t cannot be issued to correct an error of fact. What is an error of la$ a""arent on the face of record is to be decided by the courts on the facts of each case.

@ari Fishnu Camath . Ahmad 5sha&ue% .A/-0!#011110126) 4 A5R 1266 !# 2234 1266 !#A 1164 1266 !#8 2374 1266 !#R 111). The !u"reme #ourt held that no error could be said to be error on the face of the record if it $as not self>e ident and if it re&uired an e(amination or argument to establish it. An error of la$ $hich is a""arent on the face of the record can be corrected by a $rit of certiorari but not on error of fact% ho$soe er% gra e it may a""ear to be.

(c) ,isregard of Princi"les of /atural 8ustice.>

A $rit of certiorori also lies against a court or tribunal $hen it acts in iolation of the "rinci"les of natural 'ustice. T$o "rinci"les of natural 'ustice are generally acce"ted.>

(1)

the court or tribunal should be free from bias and interest%

(2)

Audi Altrum Partem i.e.% the "arties must be heared before the decision is gi en.

When it $ill not lie.>

The $rit of certiorari cannot be issued against a "ri ate body. #o>o"erati e <lectricity !u""ly !ociety :imited incor"orated under the #o>o"erati e !ocieties Act% is a "ri ate body and not a "ublic body discharging "ublic function and the $rit "etition is% therefore% not maintainable against such a "ri ate society.

,efine $rit of "rohibition and $hat is the difference bet$een $rit of certiorari and "rohibition

(2) Writ of Prohibition.>

Writ of "rohibition is issued by a su"erior court to an inferior court% tribunal or other "ublic body ha ing 'udicial or &uasi>'udicial function to "re ent it from assuming 'urisdiction $hich it does not "ossess or e(ceeding 'urisdiction or acting in contra ention of the la$ of the land or "rinci"les of natural 'ustice. 5t commands such court% body or tribunal to refrain from doing something $hich it is about to do.

Against $hom lies.>

The $rit of "rohibition $as issued only against a "ublic authority or an authority set u" by a statute e(ercising 'udicial or &uasi>'udicial functions. 5t did not lie against a "ri ate authority. Where a statutory authority ha ing no 'udicial or &uasi>'udicial function act illegally% mandamus may be issued and if it is about to act% in'unction may be "ro"er remedy% not "rohibition. The $rit of "rohibition $ill not issue against a legislature to retrain from e(ercising legislati es functions but it can issue against a body or authority used $ith or authorised to ma+e or enforce subordinate legislation.

Who can a""ly.>

The "erson $hose legal right is iolated is entitled to a""ly for the $rit of "rohibition.

#onditions for issue of "rohibition.>

(1) :i+e $rit of certiorari% "rohibition can be issued only against authorities e(ercising 'udicial or &uasi>'udicial functions.

(2) The $rit can be issued only $here such 'udicial or &uasi>'udicial authority assumes 'urisdiction $hich does not ha e or e(ceeds the 'urisdiction $hich it has or $here "roceedings are in contra ention of la$ or "rinci"les of natural 'ustice.

(3)

At the time of the issue of the $rit% "roceedings must be "ending.

()) Where "roceedings are "artly $ithin the 'urisdiction of such authority and "artly in e(cess of its 'urisdiction% the $rit $ill lie only against that "art of the "roceedings $hich is in e(cess of its 'urisdiction.

(6) The authority should also continue to function. 5f before the issue of the $rit the authority becomes functus% officio% "rohibition $ill not be a""ro"riate remedy.

(3) There should not be deliberate concealment or misstatement of material facts $hich may mislead the court.

Alternati e Remedy.>

5n case of certiorari% the e(istence of alternati e remedy may be a ground for reflecting "etition but $here there is usur"ation of 'urisdiction% the fact that alternati e remedy is a ailable is irrele ant and "rohibition has to be issued as a matter of right.

Eengal 5mmunity #om"any :td. . !tate of Eihar% .A/-0!#011=301266 4 A5R 1266 !# 3314 1266 !#A 11)14 1266 !#8 3724 (1266) 3 !T# ))34 (1266) 2 !#R 313. The !u"reme #ourt held that the e(istence of an alternati e remedy may be more material in case of $rit of certiorari% but $here the inferior court assumes 'urisdiction $hich it does not "ossess% $rit of "rohibition $ill issue as of right.

Prohibition to be rarely issued4>

The !u"reme #ourt and the @igh #ourts ha e "o$er to issue $rits including $rit of

"rohibition. A $rit of "rohibition is normally issued only $hen the inferior court or tribunal>

(1)

Proceeds to act $ithout or in e(cess of 'urisdictionA

(2)

Proceeds to act in iolation of rules of natural 8usticeA

(3)

Proceeds to act under the la$ $hich itself is ultra ires or unconstitutionalA

())

Proceeds to act in contra ention of fundamental rights.

<("lain the $rit of mandamus?

(3). .andamus4>

5t is an order issued by the !u"reme #ourt or a @igh #ourt to any go ernment% #ourt% "ublic authority or cor"oration or "erson in ested $ith "ublic duty commanding such go ernment% court% "ublic authority% cor"oration or "erson to "erform some "ublic duly in $hich the "etitioner has sufficient legal interest.

5t is in nature of command re&uiring any s"ecific act to be done or not to be done by any "erson holding "ublic office% "ermanent or tem"orary or by a cor"oration or inferior court.

The "ur"ose of this $rit is to "rotect legal rights% to enforce constitutional limitations% to correct error of la$ and iolations of "rinci"les of natural 'ustice and to com"el any "erson or authority to "erform a "ublic duty cast u"on him by la$. 5t cannot be issued to enforce de"artmental instruction not ha ing statutory force.

Who can a""ly.>

Bnly the "erson% $hose legal right is directly affected by the non>"erformance of the "ublic duty% can a""ly for $rit of mandamus. @e must ad ice e idence before the court that a demand for the "erformance of duty $as made and the officer or "ublic body concerned refused to do that duty.

Against $hom mandamus lies.>

The $rit of mandamus $ill lie against a "erson holding "ublic office "ermanently or tem"orarily or "ublic body or cor"oration or an inferior court or tribunal. 5t does not lie against a "ri ate indi idual. .andamus $ill lie against a go ernment or its officers $here the go ernment or the officer e(ceeds the limits of his "o$ers or fails to com"ly $ith the conditions im"osed by a statute for e(ercise of such "o$ers.

Public Bffice.>

Public office refers to any "osition established by la$ to $hich certain duties or ser ices are attached $hich incumbent officer is duty bound to "erform. The duty in &uestion being "ublic% they in ol e e(ercise of some go ernmental or attests &uasi>go ernmental authority by the incumbent officer.

#onditions of issue of mandamus.>

A $rit of mandamus $ill be issued if the follo$ing conditions are satisfied>

(1) The "etitioner has a legal right to com"el the o""onent to "erform legal duty cast on the o""onent. 5n other $ords% he must ha e a 'udicially enforceable right.

(2) The $rit of mandamus and certiorari are issued for enforcement of an e(isting legal right% not for establishing it.

(3)

The duty must be of "ublic nature.

()) The duty must be of a mandatory nature. Where the duty is not im"erati e but of discretionary nature mandamus $ill not lie.

What are the grounds or $hich &uo $arranto can lie?

()) Guo $arranto.>

Ey &uo $arranto "roceedings a "erson holding any "ublic office or franchise is called u"on to sho$ by $hat authority or right he holds that office. 5f the court finds that holder of the office has no alid title it $ill oust the "erson by issuing $rit of &uo>$arrant.

The $rit has t$o>fold "ur"ose. 5t "rotects a citiDen from being de"ri ed of "ublic office unla$fully by usur"ers and controls the e(ecuti e action in matters of a""ointments of "ublic officers.

Who can a""ly.>

5n &uo $arranto "roceedings% the "etitioner does not necessarily see+ to enforce his right but challenges the alidity of the claim of the holder of a "ublic office and as such can be a""lied for by any "erson $hether he has any "ersonal interest or not. *or instance>offices of Ad ocate>;eneral or a !"ea+er or "ublic offices. Petition can be mo ed by any "erson on the ground that the holder of the office is an usur"er $ithout alid claim.

#onditions for issue of Guo $arranto.>

A $rit of &uo $arranto can be issued if the follo$ing conditions are satisfied4

(1) The office in &uestion must be a "ublic office. 5t must be established that the office held by the usur"er is a "ublic office. A "ublic office means an office in $hich "ublic ha e an interest. The $rit of &uo>$arranto $ill not issue in res"ect of an office of "ri ate nature.

8amal"ur Arya !ama' . ,r. ,. Ram% A5R 126) Pat 2274 5:R 33 Pat 167. The $rit of &uo $arranto against the members of the $or+ing committee of the Eihar Ra' Arya Pratinidhi !abha a "ri ate religious organiDation $as refused because the office $as not a "ublic office.

(2) The office must be of substanti e character. Guo $arranto $ill lie only $here office in dis"ute is of substanti e character i.e.% an office inde"endent in title.

;.,. Car+are . T.:. !he de% .A/-0/A0112201261 4 A5R 1262 /ag 3314 5:R (1262) /ag )12. A substanti e office means an office inde"endent in title as distinguished from a de"uty or ser ent. 5t $as held that &uo $arranto $ould issue if the office is "ermanent e en if it is held by the holder at the "leasure of the !tate. The office may be high or lo$.

(3) The holder should not be legally &ualified to hold the office. The "ur"ose of the $rit is to "re ent usur"ation of a "ublic office. 5t $ill% therefore% not lie $here the holder of the office is legally entitled to hold it. < en $here a "erson initially occu"ies the office illegally but becomes &ualified to hold it before the hearing% the court $ill refuse to issue &uo $arranto.

@ari !han+ar Prasad ;u"ta . !u+hdeo Prasad% .A/-0-P0112=0126) 4 A5R 126) All 2274 5:R (126)) 1 All ))74 1263 All :8 37=. The $rit $as refused on the ground that although the holder of the office $as not &ualified on the date of a""ointment% he ac&uired the necessary &ualifications $hile the $rit "etition $as "ending.

()) The holder of the office against $hom $rit is claimed must ha e assumed the office. Eut it is not necessary that he must ha e assumed the name of the office because $hether a "erson has usur"ed an office or not is a &uestion of substance.

(6) The holder of the office must ha e ceased to hold it once he cease to hold an office%

the $rit $ill become infructuous.

<("lain the @abeas #or"us. Who can a""ly their $rit?

(6). @abeas #or"us4>

@abeas #or"us literally means 9ha e the cor"us or bring the body9. Ey issuing this $rit the court orders the "erson detaining another "erson to "roduce the detainee before the court to enable it to e(amine the legality of the detention. This $rit is the most im"ortant one from the "oint of ie$ of maintaining liberty of mo ement. The main "ur"ose of the $rit is to set at large a "erson $ho has been illegally detained by any "erson or authority.

Who can a""ly?.>

A $rit "etition is normally filed by the "erson $hose right is iolated but an a""lication for habeas cor"us can also be mo ed by any other "erson $ho is related to or has interest in the detainee. !uch other "erson $ill ha e to gi e reasons as to $hy the detainee could not ma+e the affida it himself.

An ad ocate in his ca"acity of an ad ocate cannot file a""lication on behalf of the detainee unless he holds "o$er>of>attorney from the detainee.

Against $hom issued.>

Writ of @abeas #or"us is issued against any "erson or authority% $ho has illegally detained any "erson% unli+e other $rit habeas cor"us can be issued e en against a "ri ate indi idual.

-sha ,e i . Cailash /arain ,i(it% .A/-0.P0111=0127= 4 A5R 127= .P 2)4 1277 .P:8 3114 1277 @indu :R 331. The "etitioner9s son aged four and a half years $as forcibly

detained by the res"ondent $ho $as grandfather of the minor son. The $rit $as issued by the @igh #ourt on the ground that the "etitioners being mother and father $ere natural guardian and entitled to the custody of the child.

;hulam !ar$ar . -nion of 5ndia% .A/-0!#0113201233 4 A5R 1237 !# 13364 (1237) 1 !#A 2)34 1237 #r :8 121)4 (1237) 2 !#R 271. 5n that case after the "etition $as dismissed by the @igh #ourt% the "etitioner a""roached the !u"reme #ourt under article 32. The !u"reme #ourt held that @igh #ourt9s order $ill not o"erate as res 'udicata and decided the "etition. 5t $ill ma+e no difference as to $hether the a""lication for habeas cor"us in the @igh #ourt $as filed under article 223 or section 311 of #r.P.#.

#onditions for grant of habeas cor"us.>

The $rit of habeas cor"us $ill be issued in the follo$ing circumstances4

(i)

Where the detention is "rima facie illegal i.e.% there is no la$ su""orting it.

(ii)

Where the detention is under some "ro ision of la$4

(a)

if the "ro ision is unconstitutional% or

(b)

5f the detention is not in conformity $ith the "rocedure established by that la$

When @abeas #or"us is refused?

(1) The essential ground for issue for the $rit of habeas cor"us is illegality of detention. 5f% therefore% detention is held legal% the $rit $ill not be issued.

Eatul #handra ;hosh . !tate of West Eengal% .A/-0!#0133701272 4 A5R 127) !# 22=64 127) #r :8 131). The "etitioner $as detained under West Eengal (Pre ention of

Fiolent Acti ities) Act% 1271. @e challenged the constitutional alidity of his detention by a $rit "etition under article 32 of the #onstitution. 5t $as established that the detenu and his associates% armed $ith daggers and bombs and other lethal $ea"ons attac+ed the house of a "erson and some of the inmates by hurling bombs and thereby created "anic in the locality. The detention of the "etitioner $as held alid and his $rit "etition for habeas cor"us $as dismissed.

(2) At the time of issue of $rit% illegal detention must continue. The "ur"ose of the $rit is to set at large a "erson $ho has been $rongly detained. 5f by the time the "etition is decided% the detention is $ithdra$n and he is released% the $rit becomes infructuous and the court $ill not issue the $rit of habeas cor"us.

Prosecution for criminal offence is no bar to issue of habeas cor"us.>

A "erson cannot contend that the $rit of habeas cor"us should not issue merely because he $as already "roceeded against for criminal offence.

#a"t. ,ushyant !omal . !mt. !ushma !omal% .A/-0!#016)1012=1 4 A5R 12=1 !# 11234 12=1 #r :8 7124 (12=1) 2 !## 2774 12=1 !## (#ri) )13. The "roceedings under section 333 of 5ndian Penal #ode $ere launched against the father for snatching a$ay the child from la$ful custody of the mother. ,uring the "endency of the "roceeding the mother a""lied for $rit of habeas cor"us. The father contended that the $rit should not issue because criminal "roceedings $ere already started against him. The court re'ected the contention and sentenced him to im"risonment for not obeying the direction of the court.