RESPONDENT: DISTRICT MAGISTRATE, DARJEEIJNG & ORS. DATE OF JUDGMENT11/09/1973 BHAGWATI, P.N. BHAGWATI, P.N. SIKRI, S.M. (CJ) PALEKAR, D.G. CHANDRACHUD, Y.V. KRISHNAIYER, V.R. CITATION: 1973 AIR 2684 1974 SCR (1) 621 1973 SCC (2) 674 CITATOR INFO : E 1976 SC1207 (500) ACT: Constitution of. India, Art. 32Habeas CorpusO.XXXV, rr. 4 and 5 and O. XLYII. rr. 1 and 6 of Supreme Court Rules Whether Production of the body of the detenu before the Court essential for the disposal of the petition by the Court. HEADNOTE: The petitioner, an undertrial prisoner, filed a petition under Art. 32 for the issue of writ of habeas corpus. The Court issued rule nisi but directed that the petitioner need not be produced in person. On the question whether the pro duction of the body of the person detained was essential before the application for a writ of habeas corpus could be finally heard and disposed of by the Court. HELD : (1) There is nothing in Art. 32 which requires that the body of the person detained must be produced before an application for a writ of habeas corpus could be heard and decided by the Court. It is competent for the court to dispense with the production of the body of the person detained while issuing a rule nisi under O.XXXV, r. 4 of the Supreme Court Rules and the rule nisi could be heard and an appropriate order passed in terms of O.XXXV, r. 5 without requiring the body of the person detained to be brought before the Court. [635FG] (2)in enacting Art. 32(2) the Constitutionmakers meant to give to a person illegally restrained of his liberty the same kind of remedy, fashioned and developed over the years in England and the United States. Both on a priori reasoning as also on the basis of the practice in England and the United States, the production of the body of the person detained was not a basic or essential requirement of a proceeding for a writ of habeas corpus. [633H] The Supreme Court could examine the legality of the detention of the hearing of the rule nisi without requiring that the person detained be brought before the Court, and if the detention is found unlawful, order him to be released forthwith. [634F] (3) The same procedure is set out in O. XXXV,rr.4 and 5 read with O. XLVII, rr. 1 and 6 of the Supreme Court Rules. O. XXXV, rr. 1 and 6 of the Supreme Court Rules provides that if on the preliminary hearing the Court is of opinion that a prima facie case for granting the petition is made out, a rule nisi shall issue calling upon the respondent to appear and show cause why the order sought, namely, order for release of the person detained, should not be made and at the same time to produce in Court the body of the person detained "then and there to be dealt with according to law". But O. XLVII, r. 1 empowers the Court, for sufficient cause shown, to dispense with the requirements of O. XXXV, r. 4 and the Court may direct in an appropriate case that the body of the person detained need no, be produced in Court at the hearing of the rule nisi. The same is the effect of O. XLVII, r. 6. Where such a direction is given the Supreme Court would hear the rule nisi without the person detained being brought before it and, as provided in O. XXXV, r. 5 "If no cause is shown or if cause is shown and disallowed" pass an order that the person detained be set at liberty and "if cause is shown and allowed" discharge the rule nisi. [634GH: 635 AB] (4)Though the petitioner had a fundamental right under Art. 3 and the SupremeCourt is bound under Art. 32(2) to issue appropriate direction, order or writfor enforcement of such fundamental right, there is so obligation on it to 14L382SupCI/74 622 give any particular kind of remedy to the. petitioner. What should be the appropriate remedy to be given is a matter for the Court to decide under Art. 32(2). In cases of this nature the Court may say that it is not necessary for the petitioner to be produced before the Court and that it would be sufficient and appropriate instead to examine the validity of the detention without having him brought before the Court, and if. the detention is found to be lawful, pass 'an order setting him at liberty. [635 CD] [Nature and history of the writ of habeas corpus examined] JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 205 of 1973. Under Article 32 of the Constitution of India for issue of a writ in the n