Prisoner In Lawful Custody Also Entitled To Relief When He Is Deprived Of His Lawful Rights: Jaising On Talib Hussain's Case, SC Issues Notice

Prisoner In Lawful Custody Also Entitled To Relief When He Is Deprived Of His Lawful Rights: Jaising On Talib Hussain

The Supreme Court on Wednesday issued notice on a plea against custodial torture on behalf of lawyer and activist Talib Hussain, who is facing allegation of rape.

The bench of Chief Justice Dipak Misra and Justices A. M. Khanwilkar and D. Y. Chandrachud, however, refused to grant any interim relief in the light of the claims of “third degree torture of the worst kind” while Hussain is in remand in the Samba Police Station.

The hearing witnessed a discussion on whether the writ of habeas corpus shall lie where a person lawfully arrested is tortured in custody.


Justice Khanwilkar inquired if Hussain has been produced before a Magistrate. When Senior Counsel Indira Jaising, for the petitioner, answered in the affirmative, the Chief Justice asked how the writ of habeas corpus could be applicable now.

Stating that she is not inviting the bench to the question whether the arrest is lawful or not, Senior Counsel Indira Jaising, for the petitioner, relied on the 1979 apex court ruling in Sunil Batra (II), where a letter by a prisoner about the brutal assault of another prisoner by the Head Warder had metamorphosed in a habeas proceeding.

She indicated various passages in the judgment where the Supreme Court had, relying on the American jurisprudence, made observations regarding the multiple uses of the writ of habeas corpus, in so far as in the international jurisdiction the scenario has come to develop that

“The writ is not and never has been a static, narrow formalistic remedy”, and that “A prisoner is entitled to the writ of habeas corpus, when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement”.

When the Chief Justice noted that the prayers in the petition do not question the detention order, Ms. Jaising clarified that she is not challenging the custody or seeking a release, and only relying on the Sunil Batra judgment in as much it held any form of torture in custody to be unacceptable.

Justice Khanwilkar considered the possibility of relief by the concerned magistrate, while Justice Chandrachud remarked, “If the arrest is lawful, he will be held in custody for as long as it has been allowed. That is the settled law”

Elaborating on the facts, Ms. Jaising advanced, “the basis of the writ is the torture inflicted on the witness in the Kathua trial...there are two FIRs against him (Hussain), the first being by his Wife (for domestic violence and attempt to murder), where anticipatory bail has been granted granted...the police travelled a distance of over 200 km to arrest him on the wife’s FIR and when he told them that he has obtained the anticipatory bail, they were stumped...they made a call and subsequently, a second FIR was lodged by the sister-in-law that she was raped by him a month back...when they (the police) left Samba to make the arrest, the diary indicates the FIR no.185 which is on the instance of the wife”

“this is not a habeas corpus remedy but a remedy seeking the intervention of the court for custodial torture”, noted the Chief Justice.

“I stand corrected”, said Ms. Jaising.

Observing that the Fundamental factum of the Petition is to highlight the issue of custodial torture, the bench proceeded to issue notice, listing the matter on August 21.

However, the bench did not concede to Ms. Jaising’s request for an express order restraining any torture.

The bench on Wednesday also allowed the application for impleadment on behalf of the rape victim, whose advocate vehemently alleged a distortion of facts and that there are several FIRs pending against Hussain.