PART F RULES FRAMED UNDER SECTION 491(2) OF THE CODE OF CRIMINAL PROCEDURE, 1898, TO REGULATE PROCEDURE IN CASES UNDER SECTION 491.
1. An application for an order under section 491 shall be made on an affidavit setting forth the circumstances under which the order is sought:
Provided that all communications addressed to the High Court by a person in the custody of a public officer complaining of his detention or the conditions of his detention, whether supported by affidavit or not, shall be laid before a Judge for orders as applications under this rule.
2. Where the court is of the opinion that a prima facie case for granting the application is made out, a rule nisi may be issued calling upon the person or persons against whom the order is sought to appear on a day to be named therein to show cause why such order should not be made and at the same time to produce in Court the body of the person or persons alleged to be illegally or improperly detained then and there to be dealt with in accordance with law:
Provided that if the Court so orders, production of the body of the person alleged to be illegally or improperly detained may be dispensed with.
3. If the application for an order under clause (a) or (b) of sub-section (1) of the section alleges that a person is confined under such circumstances that the confinement amounts to an offence, the Court may, at the time of issuing a rule nisi, also issue a search warrant, and the person to whom the warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately brought before the Court, which shall make such order as in the circumstances of the case may seem to be proper.
4. The provisions of sections 43, 75, 77, 79, 82, 83 and 84, Criminal Procedure Code, shall, so far as may be, apply to all such warrants issued under rule 3.
5 If the Court issuing a search warrant under rule 3 has reasons to believe that the person to whom the warrant has been directed may not be able to identify the person confined, the Court may order a person named in the warrant to accompany the person to whom the warrant is directed, to assist him in the execution of the warrant.
6. The writ or the warrant shall be served by the bailiff of the Court out of the list prepared by the Registrar in consultation with the Deputy Registrar, or by such other person as may be appointed by the Judge. Where the application is by or on behalf of a security prisoner, the writ will be served on the appropriate Government and not on the officer detaining the prisoner.
A security prisoner means a person who has been detained under the orders of the Federal or Provincial Government under a law providing for preventive detention. *01
7. On the return day of such rule or on any day to which the hearing thereof may be adjourned, where no cause is shown or where cause is shown and disallowed, the Court shall pass an order that the person or persons illegally or improperly detained shall be set at liberty or delivered to the person entitled to his or their custody. Where cause is allowed, the rule shall be discharged.
8. The Court may, if necessary, in disposing of such rule, take evidence or direct a Court of Sessions or a Magistrate to take evidence
9. Upon the return and production of the party on whose behalf the rule was issued, the custody of the prisoner shall be under the control and direction of the Court until the disposal of the rule. Pending the hearing, the Court may admit the prisoner to bail or remand him to the prison where he is in custody.
10. When a bailiff is deputed by the Court to produce an alleged detenu/detenus, the party requiring the production should deposit with the Treasurer in advance, an amount equal to the calculated expenses for the journeys involved keeping in view his grade of pay and the daily allowance admissible to him under the relevant rules. The amount shall be paid to the bailiff after sanction by Deputy Registrar( Judl.) before proceeding to his destination against a receipt which shall be kept on the file of the case. *01
11. ***01[Omitted].
12. ***01[Omitted].
13. In case the bailiff does not submit his claim within the time mentioned in the last rule, the amount or the balance thereof should be refunded to the party concerned. In case, however, the party fails to claim refund within six weeks, the amount due to it be credited to Government under the head
“ Major head 1200000,
Minor head 1230000 Law & Order Receipts,
Detailed head 1231000 Justice,
1231003 Justice-General fees,
fines and forfeitures (74)”
and the treasury challan showing the credit should be attached to the file of the case. *01
14. If the writ is to be executed at State expense, the bailiff should be paid his expenses as admissible under the rules.
15. If, at any time, on sufficient ground shown to the satisfaction of the Registrar, it is proved that the bailiff submitted an exaggerated or incorrect claim or claimed expenses though they were met by the party concerned, this should be taken to be a misconduct and necessary proceedings against him be initiated under the High Court Establishment (Appointment & Conditions of Service) Rules, which may result in major penalty provided by the relevant rules.
16. To check the tendency to file frivolous habeas corpus petitions, the Court may, at its discretion, require the party concerned to deposit in advance an amount as fixed by the Court directing the issuance of rule nisi to be paid to the detenus as a compensation if the petition is found to be frivolous or vexatious. *01
17. In disposing of any such rule the Court may, in its discretion, make an order for the payment by one side or the other of the costs of the rule.
18. The forms of warrants No.1 and 2 in the Appendix to these rules shall be followed.
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