Petition U/S 491 Cr.PC is filed when a person is held under unlawful custody without any cause. It doesn’t matter who and which authority kept that person under confinement.
The only question which has to be proved is whether the custody is unlawful, without following due course of law.
The application u/s 491 Cr.pc is usually filled in session court. But initial wording of section 491 gave power to the High Court. That High Court has delegated its power to session court just to lessen the burden of a writ petition under habeas corpus.
Why Liberty of Person is Important?
It’s because Article 9 of the Constitution of Pakistan 1973 guarantees the security of a person. It prohibits the deprivation of the right to personal liberty save in accordance with the law.
Read Also: How Remand Under Cr.P.C is Granted- Meaning, Types, and Procedure
This guarantee is further reinforced by Article 4, which states that every person shall enjoy the protection of the law and be dealt with in accordance with the law.
These provisions indeed establish the principle of rule of law and due process procedure.
Section 491 of Cr. PC
As per the wording of section 491, any high court has the power to issue directions of the nature of a Habeas Corpus where a petition u/s 491 Cr.PC is filed. The court can direct that;
(a) that a person within the limits of its appellate criminal jurisdiction be brought up before the Court to be
dealt with according to law:
(b) that a person illegally or improperly detained in public or private custody within such limits be set at
(c) that a prisoner detained in any jail situate within such limits be brought before Court to be there
examined as a witness in any matter pending or to be inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or any Commissioners for trial
or to be examined touching any matter pending before such Court-martial or Commissioners respectively.
(e) that a prisoner within such limits be removed from one custody to another for the purpose of trial; and
(f) that the body of defendant within such limits be brought in on the Sheriff’s return of cepi corpus to a
writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure in the cases under this
(3) Nothing in this section applies to persons detained under [any other law providing for preventive
Application of Section 491 of Cr. PC
Below are some instances where a Petition U/S 491 Cr.PC can be filed;
- An arrest was not recorded in the daily diary of the police
- Coercive action by the authority
- Conduct of police like they took the petitioner in custody without lodging FIR
- Connection of detenu with the commission of the offense
- Custody of minor from father, mother or adopted parents
- Handing over the girl to police
- Illegal detention and maltreatment in law
- Determining the jurisdiction of guardian court
- Father Kidnap minor after the death of the mother
- Minor child in Father’s custody
- Official Secrets act
- Sui Juris unmarried girl and married girl
- Recovery of wife
- welfare of child
- Validity of marriage
Format of Petition U/S 491 Cr. PC
If you stuck in a situation where you think a petition u/s 491 Cr.PC has to be moved then get our legal help. We have provided here a sample draft of petition u/s 491 Cr. PC.
Thought below application u/s 491 of Cr.PC is concerned with police officials but the same with minor changes can be used by the father of a minor.
IN THE COURT OF SESSIONS JUDGE, RAWALPINDI.
In the matter of:
MHU son of PKH resident of __________ District Rawalpindi.
- S.H.O. P.S Kallar Syedan, District Rawalpindi.
- SAZ Sub Inspector, P.S Kallar Syedan, District Rawalpindi.
- The State
PETITION U/S 491 CR.PC FOR HABEAS CORPUS AND 22-A Cr. P.C FOR THE APPOINTMENT OF BAILIFF OF THE COURT TO RECOVER THE DETENUE NAMELY MNA & AMA FROM THE ILLEGAL CUSTODY /CONFINEMENT OF THE RESPONDENT NO. 1.
- That the brief facts of the case in the petition are that. The petitioner is a poor person and residing in the above mentioned address along with his family members.
- That on 30-12-2008, respondent No. 1 made a telephonic call to the petitioner’s son and called him in Police Station. He along with AMA, the close relative of the petitioner, went to Police Station. Then they came back home in the evening time.
- That on 31-12-2008, again the respondent No. 2 made a telephonic call to the petitioner. Again called him in P.S Kallar Syedan, along with AMA. When the petitioner’s son along with AMA went to the police station. The said Sub Inspector and respondent No. 1 illegally, unlawfully, without any lawful justification, registered FIR against them. Hence forcibly detained both of them in Police Station without any cogent reason.
- That when the petitioner approached the respondents and asked about the illegal confinement of the petitioner’s son and AMA. Both respondents extended threats of dire consequences to the petitioner and also refused to allow the petitioner to meet with his son and AMA.
- That the illegal detention and confinement of the petitioner’s son and AMA is without any lawful justification and cogent reason. The said act on the part of the respondents is a colorful exercise of their powers. Some official / Kar-e-Khas of the Police Station demanded illegal gratification from the petitioner for the release of his son and AMA, otherwise, they threatened that the detenu will be involved in any blind and in any heinous criminal case.
- That the arrest/confinement of the son of the petitioner and AMA is illegal, unlawful, and against all cannons of justice, inter alia on the following grounds:
- That the police of P.S Kallar Syedan has not adopted the legal procedure of taking into custody the son of the petitioner and AMA. The police have violated the provisions of the Police Order 2002 and the rules thereof. They have also not complied with the provisions of the Cr. P.C in the process of arresting the son of the petitioner.
- That the son of the petitioner and AMA are absolutely innocents, they have not abetted and committed any offense. They belong to respectable families and they have never involved either in any criminal case whatsoever.
- That due to the illegal confinement of the petitioner’s son and AMA, the whole family of the detenu is facing hardships and mental agonies.
- That the respondents took into their illegal custody of the detenu without any cogent reason and without registration of the case against them.
- That as your Honor is aware of the fact that free hand cannot be granted to Police to arrest even a criminal without any legal and factual justification. No Police Officer is competent to arrest any person, not shown in the Police Diary named in FIR and as the detenu who did not found involved in any case.
- That the detention of the detenu by the police is without any case having been registered is illegal. The police cannot enter even upon the investigation to arrest a person without due process of law. The Court is empowered to impose the fine on the police officer if he is found to be an outlaw in process of the arrest of an innocent person.
- That the above-mentioned detenu has not been produced before any Court of law since their arrest. The detenu has not been dealt with accordance in with the law and the custody of the detenu by the respondents is arbitrary, capricious, and illegal confinement.
- That it is expedient in the interest of justice that production order of the aforementioned detenu may kindly be issued and they may be set at liberty.
In these circumstances, it is respectfully prayed that the Petition u/s 491 Cr.PC for Habeas Corpus may kindly be allowed and detenu MNO son of MHU and AMA son of BHU residents of _____ Tehsil Kahuta District Rawalpindi from the illegal custody of the respondents may very graciously be set at liberty.
It is further prayed that a bailiff may kindly be appointed for the recovery of the detenu, in the interest of justice. It is further prayed that the respondents may be prosecuted for illegally, curtailing the liberty of the detenu and the FIR u/s 22-A may also be registered against the respondent.
Advocate High Court
IN THE COURT OF SESSIONS JUDGE, RAWALPINDI.
In the matter of:
S.H.O. P.S Kallar Syedan, District Rawalpindi, etc …Respondents
PETITION U/S 491 Cr.PC FOR HABEAS CORPUS AND 22-A Cr. P.C FOR THE APPOINTMENT OF BAILIFF OF THE COURT TO RECOVER THE DETENUE NAMELY MNA & AMA FROM THE ILLEGAL CUSTODY /CONFINEMENT OF THE RESPONDENT NO. 1.
That I, MHU son of PKH resident of ________, Tehsil Kahuta District Rawalpindi do hereby solemnly affirm and declare as under:
That the contents of the above petition u/s 491 Cr.PC is true and correct to the best of my knowledge and belief and nothing has been concealed therein.