The writ of Habeas Corpus—literally meaning “produce the body”—is among the most powerful constitutional remedies against unlawful detention. Under Article 226 (High Courts) and Article 32 (Supreme Court), courts can command any authority or individual to produce a detained person and justify the legality of such detention.

However, one of the most misunderstood areas of criminal law is when habeas corpus is actually maintainable, especially when a person is arrested or under judicial custody. Recent Supreme Court judgments have clarified the contours of this remedy and strongly cautioned against using habeas corpus as a substitute for bail.

This blog explains when habeas corpus is maintainable in criminal matters, and when it is not.

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🔹 What Is Habeas Corpus?

A writ issued to secure the release of a person unlawfully detained by the State or even by private individuals. It is a quick, urgent remedy to protect personal liberty, a fundamental right under Article 21.

The Court examines:

• Who is detaining the person?

• Is the detention legal?

• Is there any procedural violation?

• Is the person being held without authority of law?

When Habeas Corpus Is Maintainable in Criminal Matters

Below are the situations where courts can and do entertain habeas corpus petitions:

1️⃣ Illegal Detention by Police Without Filing an FIR or Following Procedure

If the police pick up a person:

• without registering an FIR,

• without producing them before a Magistrate within 24 hours (Section 57 CrPC / Section 59 BNSS),

• without following arrest guidelines (DK Basu guidelines),

the detention becomes unlawful.

➡️ Habeas corpus is fully maintainable.

2️⃣ Detention by Private Individuals (Parents, Relatives, Partners, Others)

This is the broadest category where habeas corpus applies.

Examples:

• A major woman illegally confined by her parents for marrying by choice

• A person abducted or held hostage

• A spouse forcibly taken away and confined

• Detention due to family disputes, property disputes, or honour-based restrictions

➡️ Courts readily issue habeas corpus in such cases.

3️⃣ Preventive Detention Orders Not in Conformity With Law

If a person is detained under preventive detention laws (e.g., PASA, NSA, PIT NDPS) but:

• the detention order is mechanically passed,

• mandatory procedural safeguards are violated,

• supporting material is absent or irrelevant,

➡️ Habeas corpus is maintainable to challenge the validity and legality of the detention.

4️⃣ Detention After the Person Has Already Been Granted Bail

If despite bail orders:

• the person is not released, or

• the police keep them in custody in some other illegal manner,

➡️ Habeas corpus can be sought because custody becomes unauthorised.

5️⃣ Custody Based on a Void, Stale, or Mechanical Order

If a judicial or administrative order becomes void due to:

• lack of jurisdiction,

• non-application of mind,

• violation of statutory safeguards,

then continued custody becomes illegal.

➡️ Habeas corpus lies to test the legality of such detention.

When Habeas Corpus Is Not Maintainable

This is the part many litigants misunderstand. The Supreme Court has repeatedly warned that:

Habeas corpus cannot replace the remedy of bail.

Habeas corpus cannot be used to bypass statutory criminal procedures.

1️⃣ When a Person Is in Lawful Judicial or Police Custody After Arrest

If a person is:

• arrested under a valid FIR,

• produced before a Magistrate within 24 hours,

• remanded to police or judicial custody through court orders,

their detention is legal.

➡️ Habeas corpus does NOT lie.
➡️ Remedy is bail, anticipatory bail, or quashing, not habeas corpus.

Recent SC rulings (2024–2025) have strongly reiterated this principle.

2️⃣ When the Detention Is Pursuant to a Court Order

If a Magistrate or Sessions Court has remanded the accused properly, the detention cannot be challenged through habeas corpus.

➡️ Only remedies: revision, bail, or writ for procedural violation, NOT habeas corpus.

3️⃣ When the Petition Attempts to Re-Litigate Criminal Allegations

For example:

• claiming innocence,

• alleging false FIR,

• questioning merits of the FIR.

These are not grounds for habeas corpus.

➡️ Courts do not allow habeas corpus to become a mini-trial or an alternative to quashing.

Supreme Court’s Latest Position (2024–2025)

The Supreme Court has repeatedly emphasised:

• Habeas corpus lies only when the detention is illegal.

• It cannot be used to challenge judicial custody, even if the arrest is alleged to be wrongful.

• It cannot substitute statutory remedies like bail or revision.

• It is maintainable against private detention, which is increasingly common.

The Court has also cautioned High Courts not to entertain habeas corpus for accused persons who are already in custody through judicial orders.

Conclusion

Habeas corpus remains a powerful constitutional remedy, but its scope in criminal matters is limited and specific.

Maintainable when:

✔ Police detain illegally
✔ Produced after 24 hours
✔ Private illegal confinement
✔ Defective preventive detention
✔ Detention after bail order

Not maintainable when:

❌ The accused is in lawful police or judicial custody
❌ Arrest and remand are through valid court orders
❌ Petitioner is indirectly seeking bail through habeas corpus

Understanding these limits helps lawyers file the right remedy at the right stage, preventing dismissal and ensuring effective protection of personal liberty.