IMPORTANT POINT
Petition seeking issuance of writ of habeas corpus cannot be entertained to trace out a missing person.

ORDER

This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

2. Heard Mr. A.K. Pandey, learned counsel for the petitioner and Smt. Saswata Pattanaik, learned counsel for the State.

3. Mr. Pandey, learned counsel for the petitioner submitted that the daughter of the petitioner is untraceable since long, for which the petitioner had lodged a first information report on 12.10.2022 at the Bidanasi Police Station, Cuttack. However, he alleged that though almost a year has elapsed since the filing of the F.I.R., the Opposite Parties are not taking any efficacious step to trace out the daughter of the petitioner.

4. After hearing the submissions, it seems to be a case of ‘missing person’. No material was produced to show that the daughter of the petitioner has been illegally detained by anyone. It is needless to say that the Court has to be satisfied about the factum of ‘illegal detention’ before it proceeds to entertain a petition seeking issuance of the writ of habeas corpus. There is no dearth of precedents from the Hon’ble Supreme Court and different High Courts to support the above position of law and there is hardly any need to reproduce all of them. The Hon’ble Supreme Court in the case of Union of India -Vrs.- Yumnam Anand M. alias Bocha alias Kora alias Suraj and another reported in (2007) 10 Supreme Court Cases 190 was of the opinion that a petitioner must show a prima facie case of ‘unlawful detention’ before it urges the Court to issue the prerogative writ of habeas corpus. The Apex Court elucidated the above mandate in a crisp and lucid manner and held as follows:—

‘7. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it “the great and efficacious writ in all manner of illegal confinement”. The writ has been described as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right.’

5. In the case of Home Secretary (Prisons) and others -Vrs.- H. Nilofer Nisha reported in (2020) 14 Supreme Court Cases 161, it is held as follows:—

16. A writ of habeas corpus can only be issued when the detention or confinement of a person is without the authority of law. Though the literal meaning of the Latin phrase habeas corpus is ‘to produce the body’, over a period of time production of the body is more often than not insisted upon but legally it is to be decided whether the body is under illegal detention or not. Habeas corpus is often used as a remedy in cases of preventive detention because in such cases the validity of the order detaining the detenu is not subject to challenge in any other court and it is only writ jurisdiction which is available to the aggrieved party. The scope of the petition of habeas corpus has over a period of time been expanded and this writ is commonly used when a spouse claims that his/her spouse has been illegally detained by the parents. This writ is many times used even in cases of custody of children. Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law.

6. In the case of Sulochana Bai -Vrs.- State of M.P. reported in 2008 (2) MPHT 233, a Division Bench of Madhya Pradesh High Court presided over by Hon’ble Justice Dipak Misra (as His Lordship then was) held as follows:—

‘We have referred to the aforesaid decisions only to highligh