(735 ILCS 5/10-116) (from Ch. 110, par. 10-116)
Sec. 10-116.
Neglect to obey order.
If the officer or person upon whom
such order is served
refuses or neglects to obey the same, by producing the party named in
the order and making a full and explicit return thereto within the time
required by Article X of this Act, and no sufficient excuse is shown for such refusal
or neglect, the court before whom the order is returnable, upon
proof of the service thereof, shall enforce obedience by attachment as
for contempt, and the officer or person so refusing or neglecting shall
forfeit to the party a sum not exceeding $500, and be
incapable of holding office.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-117) (from Ch. 110, par. 10-117)
Sec. 10-117.
Order in case of neglect.
The court may also, at the same
time or afterwards,
enter an order to the sheriff or other person to whom such attachment is
directed, commanding him or her to bring forthwith before the court
the party for whose benefit the habeas corpus order was entered, who shall thereafter
remain in the custody of such sheriff, or other person, until the party is
discharged, bailed or remanded, as the court directs.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-118) (from Ch. 110, par. 10-118)
Sec. 10-118.
Proceedings in case of emergency.
Whenever it appears by
the complaint, or by affidavit,
that any one is illegally held in custody or restraint, and that there
is good reason to believe that such person will be taken out of the
jurisdiction of the court in which the application for a
habeas corpus is made, or will suffer some irreparable injury before
compliance with the order can be enforced, the court may enter an order
directed to the sheriff or other proper officer,
commanding him or her to take the prisoner thus held in custody or restraint,
and forthwith bring him or her before the court to be dealt with
according to law. The court may also, if it is deemed
necessary, order the apprehension of the person charged with causing the
illegal restraint. The officer shall
execute the order by bringing the person therein named before the court,
and the like return and proceedings shall be had
as in other orders of habeas corpus.
(Source: P.A. 83-707.)
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(735 ILCS 5/10-119) (from Ch. 110, par. 10-119)
Sec. 10-119.
Examination.
Upon the return of an order of habeas corpus, the court
shall, without delay, proceed to examine the cause of the
imprisonment or restraint, but the examination may be adjourned from
time to time as circumstances require.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-120) (from Ch. 110, par. 10-120)
Sec. 10-120.
Denial of allegations in return.
The party imprisoned
or restrained may file a reply to the return and deny any of the
material facts set forth in the return, and may allege any other facts
that may be material in the case, which denial or allegation shall be on
oath; and the court shall proceed promptly to examine
the cause of the imprisonment or restraint, hear the evidence produced
by any person interested or authorized to appear, both in support of
such imprisonment or restraint and against it, and thereupon shall
determine the matter according to law.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-121) (from Ch. 110, par. 10-121)
Sec. 10-121.
Seeking wrong remedy not fatal.
Where relief is sought
under Article X of this Act and the court determines, on motion directed
to the pleadings,
or on motion for summary judgment or upon trial, that the plaintiff has
pleaded or established facts which entitle the plaintiff to relief but that
the plaintiff has sought the wrong remedy, the court shall permit the pleadings
to be amended, on just and reasonable terms, and the court shall grant the
relief to which the plaintiff is entitled on the amended pleadings or upon
the evidence. In considering whether a proposed amendment is just and reasonable,
the court shall consider the right of the defendant to assert additional
defenses, to demand a trial by jury, to plead a counterclaim or third party
complaint, and to order the plaintiff to take additional steps which were
not required under the pleadings as previously filed.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-122) (from Ch. 110, par. 10-122)
Sec. 10-122.
Amendments.
The return, as well as any denial or allegation, may be
amended at any time by leave of the court.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-123) (from Ch. 110, par. 10-123)
Sec. 10-123.
When prisoner not entitled to discharge.
No person shall
be discharged under the provisions of this
Act, if he or she is in custody:
1. By virtue of process of any court of the United States,
in a case where such court has exclusive jurisdiction; or,
2. By virtue of a final judgment of any circuit court, or of any
proceeding for the enforcement of such judgment, unless the time during which such
party may be legally detained has expired; or,
3. For any treason, felony or other crime committed in any other
state or territory of the United States, for which such person ought, by
the Constitution and laws of the United States, to be delivered to
the executive power of such state or territory.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-124) (from Ch. 110, par. 10-124)
Sec. 10-124.
Causes for discharge when in custody on process of court.
If it appears that the prisoner is in custody by virtue of
process from any court legally constituted, he or she may be discharged only
for one or more of the following causes:
1. Where the court has exceeded the limit of its jurisdiction,
either as to the matter, place, sum or person.
2. Where, though the original imprisonment was lawful, nevertheless, by some
act, omission or event which has subsequently taken place, the party has
become entitled to be discharged.
3. Where the process is defective in some substantial form required
by law.
4. Where the process, though in proper form, has been issued in a
case or under circumstances where the law does not allow process to issue or
orders to be entered for imprisonment or arrest.
5. Where, although in proper form, the process has been issued in a
case or under circumstances unauthorized to issue or execute the same,
or where the person having the custody of the prisoner under such
process is not the person empowered by law to detain him or her.
6. Where the process appears to have been obtained by false pretense
or bribery.
7. Where there is no general law, nor any judgment or order of a
court to authorize the process if in a civil action, nor any conviction if
in a criminal proceeding. No court, on the return of a habeas
corpus, shall, in any other matter, inquire into the legality or justice
of a judgment of a court legally constituted.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-125) (from Ch. 110, par. 10-125)
Sec. 10-125. New commitment. In all cases where the imprisonment is
for a criminal, or
supposed criminal matter, if it appears to the court that there
is sufficient legal cause for the commitment of the prisoner, although
such commitment may have been informally made, or without due authority,
or the process may have been executed by a person not duly authorized,
the court shall make a new commitment in proper form, and
direct it to the proper officer, or admit the party to pretrial release if the case
is eligible for pretrial release. The court shall also, when necessary, take the
recognizance of all material witnesses against the prisoner, as in other
cases. The recognizances shall be in the form provided by law, and
returned as other recognizances. If any judge shall neglect or refuse to
bind any such prisoner or witness by recognizance, or to return a
recognizance when taken as hereinabove stated, he or she shall be guilty of a
Class A misdemeanor in office, and be proceeded against accordingly.
(Source: P.A. 101-652, eff. 1-1-23.)
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(735 ILCS 5/10-126) (from Ch. 110, par. 10-126)
Sec. 10-126.
Remand.
When any prisoner brought up on a habeas corpus is
remanded to prison, it shall be the duty of the court remanding
the prisoner to deliver to the sheriff, or other person to whose
custody the prisoner is remanded, an order in writing, stating the cause of
remanding the prisoner. If such prisoner obtains a second order of habeas
corpus, it shall be the duty of such sheriff, or other person to whom
the same is directed, to return therewith the order above stated; and
if it appears that the prisoner was remanded for an offense
adjudged not bailable, it shall be taken and received as conclusive, and
the prisoner shall be remanded without further proceedings.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-127) (from Ch. 110, par. 10-127)
Sec. 10-127. Grant of habeas corpus. It is not lawful for any court, on a second
order of habeas corpus obtained by such prisoner, to discharge the prisoner,
if he or she is clearly and specifically charged in the warrant of
commitment with a criminal offense; but the court shall,
on the return of such second order, have power only to admit such
prisoner to pretrial release where the offense is eligible for pretrial release by law, or remand him or
her to prison where the offense is not eligible for pretrial release, or being eligible for pretrial release, where such
prisoner fails to comply with the terms of pretrial release.
(Source: P.A. 101-652, eff. 1-1-23.)
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(735 ILCS 5/10-128) (from Ch. 110, par. 10-128)
Sec. 10-128.
Person discharged again imprisoned.
No person who has
been discharged by order of the court
on a habeas corpus, shall be again imprisoned, restrained or kept
in custody for the same cause, unless he or she is afterwards indicted for the
same offense, nor unless by the legal order or process of the court
wherein he or she is bound by recognizance to appear. The following shall not
be deemed to be the same cause:
1. If, after a discharge for a defect of proof, or any material
defect in the commitment, in a criminal case, the prisoner is
again arrested on sufficient proof, and committed by legal process for
the same offense.
2. If, in a civil action, the party has been discharged for any
illegality in the judgment or process, and is afterwards imprisoned by
legal process for the same cause of action.
3. Generally, whenever the discharge is ordered on account of
the non-observance of any of the forms required by law, the party may be
a second time imprisoned if the cause is legal and the forms required by
law observed.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-129) (from Ch. 110, par. 10-129)
Sec. 10-129.
Penalty for rearrest of person discharged.
Any person
who, knowing that another has been discharged by
order of a competent court on a habeas corpus, shall,
contrary to the provisions of Article X of this Act, arrest or detain him
or her again for
the same cause which was shown on the return to such order, shall forfeit
$500 for the first offense, and $1,000 for every subsequent offense.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-130) (from Ch. 110, par. 10-130)
Sec. 10-130.
Prisoner not to be removed from county.
To prevent any
person from avoiding or delaying his or her trial,
it shall not be lawful to remove any prisoner on habeas corpus under
Article X of this Act out of the county in which he or she is confined, within 15 days
next preceding the first day of the calendar month in which such person
ought to be tried unless it is done to convey him or her into the county where the
offense with which he or she stands charged is properly cognizable.
(Source: P.A. 82-280.)
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(735 ILCS 5/10-131) (from Ch. 110, par. 10-131)
Sec. 10-131.
Custody not to be changed.
Any person being committed to
any prison, or in the custody
of any sheriff or other officer or person for any criminal or supposed
criminal matter, shall not be removed therefrom into any other prison or
custody, unless it is done by habeas corpus order or some other legal process or when
it is expressly allowed by law. If any person removes, or causes to
be removed any prisoner so committed, except as above provided, he or she shall
forfeit to the party affected a sum not exceeding $300.
(Source: P.A. 83-707.)
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(735 ILCS 5/10-132) (from Ch. 110, par. 10-132)
Sec. 10-132.
Avoidance of order - Punishment.
Any one having a person
in his or her custody, or under his or her restraint, power or control,
for whose relief an order of habeas corpus is
entered, who, with intent to avoid the effect of such order,
transfers such person to the custody or places him or her
under the control of another, or conceals him or her, or changes the place
of his or her confinement,
with intent to avoid the operation of such order, or with intent to remove
him or her out of the State, shall, for every such offense, be guilty of
a Class 4 felony. In any prosecution for the penalty incurred under this
Section it shall not be necessary to show that the order of habeas
corpus had been entered at the time of the removal, transfer or concealment
therein mentioned, if it is proven that the acts therein forbidden were
done with the intent to avoid the operation of such order.
(Source: P.A. 83-707.)
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(735 ILCS 5/10-133) (from Ch. 110, par. 10-133)
Sec. 10-133.
Penalties - How recovered.
All the pecuniary forfeitures
incurred under this Act shall
inure to the use of the party for whose benefit the order of habeas
corpus was entered, and shall be sued for and recovered with costs, by the
Attorney General or State's Attorney, in the name of the State, by
complaint; and the amount, when recovered, shall, without any deduction,
be paid to the party entitled thereto.
(Source: P.A. 82-280.)
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