Discovery of Person Wrongfully Confined

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Wrongful Confinement Defined:

Wrongful confinement means any confinement which is against the law. Generally speaking wrongful confinement means putting any person in any place without lawful authority. Under section 340 PPC wrongful confinement is restraining any person in such a manner so as to prevent him from proceeding beyond certain circumscribing limits.

Article 10.Safeguard as to arrest and detention:

Article 10 of the Constitution of Pakistan provides that any person who is arrested must be informed of the grounds of such arrest and must be provided right and access to the legal counsel. Article 10(2) provides that every person who is detained must be produced before the Magistrate within 24 hours, excluding the time of journey.

Exception:

Maintenance of public order Act 1960 is exception to this article of the constitution. That says that a person, who is prejudicial to the integrity or public order, or maintenance of supply of service, can be detained for a period of 30 days.

Modes of Discovery of Confined Person:

There are three modes of discovery of person who is wrongfully confined:

  • Search of person by Magistrate U/S 100 Cr.P.C
  • Writ jurisdictions U/Art 199
  • Direction in the of nature of Habeas corpus U/s. 491 Cr.P.C

Search Warrant:

S.100 of Cr.P.C empowers the Magistrate of first class or sub-divisional Magistrate to issue search warrant to search of a person whom he believes to be in wrongful confinement. Such person if recovered to be immediately taken before the Magistrate for passing proper order. The enacting part of this section lists a condition precedent to the effect that before issuing a search warrant it is necessary for the Magistrate to have sufficient material before him to make him believe that a person was in confinement and that the circumstances leading to such confinement constituted an offence. The words, “reasons to believe” have been introduced by the legislature with a positive object that it was always believed that the Magistrate possessed with reasons to believe would always exercise discretion in a judicial fashion. The concluding part of this section lays down that a person if found shall immediately be taken to a Magistrate who shall make such order as in the circumstances of the case, seem proper.

Issuance of Search Warrant by Judicial Magistrate:

Proceeding u/s. 100 Cr.P.C can be taken only by the Magistrate 1st Class and not by a the Judicial Magistrate whose primary and sole function is to decide criminal cases including criminal offences. Issuance of search warrant by Judicial Magistrate would around simply to transgress his authority. Similarly search warrants issued by Additional Sessions Judge are without jurisdiction as such illegal.

Confinement Must Amount to An Offence:

It is not in every case of confinement that a magistrate can issue a warrant. He can do so only it those cases where the confinement amounts to an offence. Custody of a child with his grandmother does not constitute an offence. Magistrate as such cannot act in terms of S. 100 Cr.P.C.

Ingredients of Order by Magistrate:

The basic ingredients of order are

  • There should be information that person is confined and the confinement amounts to an offence.
  • There are reasonable grounds for the issuance of search warrants.
  • Search warrants should be issued in the name of competent persons (police any other courts official i.e., bailiff) any person to whom authority is given by court.

After the search abductee should be produced before Magistrate. On production the Magistrate may pass following order.

Order passed by Magistrate:

The magistrate may pass the order for the

  • Release the person if already not arrested
  • If already arrested send the person to jail.
  • If the confinement was illegal then order for registration of FIR against culprits.

2) Writ Jurisdiction under Article 199:

Under article 199 of the constitution of Pakistan, High Court may direct a person in custody to be brought before court and further pass any order. This writ jurisdiction is applicable to both the government and private custody. The High Court may also hold inquiry in this regard and the proceedings are summary is nature. This article may not be applicable on detention under the maintenance of public peace ordinance1965, professional Ghoondas Act, Security of Pakistan Act. The restriction that the person who applies and the person who is detained need to identical, is no applicable here and the restriction that the applicant should be by aggrieved party is not applicable for the issuance of this writ.

3) Direction of Nature of Habeas corpus U/s 491 Cr.P.C, Before High Court:

491 Cr.P.C empowers the High Court to issue direction of the nature of habeas corpus to be exercised within the limits of its appellate criminal jurisdiction. The expression “habeas corpus” literally means “have his body” the writ of habeas corpus is a prerogative process for securing the liberty of subject by affording an effective means of immediate release from unlawful detention whether in prison or in private custody. Proceedings by way of habeas corpus are the one’s calling upon person having custody of another person to produce him and demonstrate under what authority he held that person in custody. High Court has two fold jurisdiction u/s 491 Cr.P.C; first to hear appeal in its appellate criminal jurisdiction and a second to set him at liberty if he is illegally or improperly detained.

Nature of Proceeding:

Proceeding u/s. 491 Cr.P.C are summary in character and are not intended to go beyond the summary consideration of the questions essentially relevant to the alleged detention whether a detenu is to be set at liberty and as a consequence thereof be permitted to go with the person of his or her own choice or to drop the proceedings when the detention is found legal. Court is not required to go into the question of status of relationship of the parties by holding full fledged trial of counter claim and it should concern itself only with free will of the detenu.

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