Habeas Corpus Lite: Understanding Section 100 BNSS

Ever wondered what would happen if one day the police knock at your door and just picks up someone you know without telling you why and for what reasons they might be doing so. No process followed during such arrest, no person allowed to meet the arrested, power being misused to its fullest and you don’t have any idea as to what is really going, where and in what conditions the arrested person has been kept and how this will end. Scary, isn’t it?

Well, our law makers already thought of such a situation and hence provided us with effective resolution in the form of Writ of Habeas Corpus. For those who don’t know a Writ is a legal order specifically directing or prohibiting of a certain action. In case of Writ of Habeas Corpus, the High court or the Supreme Court of India under Article 226 and Article 32 of the Constitution of India respectively, can issue for an inquiry to determine whether a person has been lawfully/ unlawfully imprisoned. It protects an individual against illegal detention/ arrest by police or any other law enforcement agency in India.

But to get such an order, one needs to approach the High Court of the State or the Supreme Court of India, which any ordinary person might feel intimidating in itself. One would assume he would have to hire a good advocate in such courts, wait for drafting of the writ petition, file it in such court’s and wait for objections over such petitions by the registry of such courts. Once everything is in place till now, then there will be time delays when it comes to listing of this writ petition before the court concerned. Till now all one has spent is money and time without any result. Of course, when the matter is actually put before the Hon’ble bench, depending on the circumstances, the court would provide immediate solution with respect to the unlawful arrest, but it’s the process that preceded is what concerns an ordinary man.

But what if I were to tell you that you don’t always need to go to the High court and Supreme Court of India to achieve the results of a Writ of Habeas Corpus and in fact this could be done by a magistrate in a lower court, with lower expenses, lesser time loss and better support. Too good to be true? No, this is actually possible with the provisions of Section 100 BNSS (previously Section 97 CrPC), where a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class can pass orders almost identical to the ones passed in cases of Writ of Habeas Corpus by the High Courts and the Supreme Court of India. Let us have a look at the provision itself:

"Section 100. Search for persons wrongfully confined.

If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant, and the person to whom such 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 taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper."

Essentials and Learnings from the provision:

Reasonable Belief:

Section 100 BNSS addresses the situations where a District Magistrate, Sub-divisional Magistrate, or any Magistrate of the first class has a reason to believe that someone is unlawfully confined, he may proceed under this section.

If any of the mentioned magistrates have a reasonable belief, it may be based on a complaint or any application filed before them or any information that they receive in due course, that a person is confined under circumstances amounting to an offense, they can take action under provisions of Section 100 BNSS. The focus here is on situations where confinement is wrongful or illegal.

Issuance of Search-Warrant:

The magistrate upon having found a reasonable belief, can issue a search-warrant to the person authorized to execute it. The person to whom the warrant is directed can then search for the confined person. For Example, if a magistrate is informed that a person has been illegally arrested by some police officers in XYZ police station Delhi, he may order the Station House Officer (SHO) of XYZ PS or any officer other officer having authority over XYZ Police station like ACP, DCP, CP etc.

Immediate Action:

If the confined person is found, they must be immediately taken before a Magistrate. The Magistrate shall then decide on the appropriate course of action to be taken in the case based on the circumstances of that particular case.

Conclusion

Section 100 BNSS empowers a magistrates mentioned in the provision, to intervene promptly when they suspect unlawful confinement. This helps in preventing Unlawful Confinement.

Since application or complaint under Section 100 BNSS is filed before a Subordinate court in the state and the process is handled by a magistrate, the process can be expected to be speedier and efficient as the machinery involved is closer to the ground level operations. Additionally, the cost of having such a request made to the magistrate is significantly lesser that what it would cost in filing a writ petition in High Court of a State or Supreme Court of India. This is the reason why in legal practice, Legal professionals and advocates refer to the applications U/s 100 BNSS (previously Section 97 CrPC) as Mini Habeas Corpus or Habeas Corpus Lite, as it has majorly all the elements of what a writ of Habeas Corpus is having but is not a writ in itself. Nonetheless it is a crucial provision for any defence lawyer or aspiring legal professional in India.

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Sources:

India Code Section 100 BNSS

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Habeas Corpus Lite: Understanding Section 100 BNSS