IMPORTANT POINT
The main legal point established in the judgment is that a writ of habeas corpus cannot be issued for the production of a missing person unless there is a ground of 'illegal detention' and a strong suspicion about any such 'illegal detention'. Cases of missing persons should be registered under the regular provisions of the Indian Penal Code and investigated in the manner prescribed under the Code of Criminal Procedure.

JUDGMENT :

Ramesh Sinha, C.J.

1. Heard Mr. P. K. Patel, learned counsel for the petitioner and Mr. R. S. Marhas, learned Addl. Advocate General for the State.

2. The present writ petition (habeas corpus) has been filed by the petitioner praying for the following reliefs :-

“10.1 That, this Hon'ble Court, may kindly call for the entire record which relates to the case of the petitioner.

10.2 That, this Hon'ble Court, may kindly be pleased to issue a writ in the nature of habeas corpus, command and direct therein to the respondent authorities, to produce Smt. Priyanka Chauhan, respondent no. 4, before this Hon'ble High Court, in the interest of justice.

10.3 That, any other relief, this Hon'ble Court, deem fit and proper may also kindly be granted to the petitioner, in the interest of justice.”

3. The case of the prosecution in brief is that the petitioner is the husband of the respondent No.4 Priyanka Chouhan and their marriage was solemnized way back in the year 1999. On 08.08.2023, the petitioner lodged a missing report to the Police Station City Kotwali, Raigarh alleging that his wife respondent No.4 is missing from Raigarh since 06.04.2023, upon which Missing Report No.63/2023 was registered and thereafter he also filed complaint before the SP, Raigarh, but the wife of the petitioner could not be traced. Hence, this petition has been filed.

4. Learned counsel for the petitioner submits that the respondent No.4 is the wife of the petitioner having the two children and she is missing from Raigarh since 06.04.2023, which is the matrimonial place of the respondent No.4. The petitioner has also lodged missing report of his wife, but despite missing report being lodged by him, the concerned respondent authorities are not properly inquiring the matter and till date respondent No.4 has not been found. The action of the respondent authorities is illegal, erroneous and contrary to the law. Therefore, the respondent authorities may kindly be directed to produce the respondent No.4.

5. Learned State counsel submits that the last mobile location of the respondent No.4 was traced at Udaypur, Rajasthan, as such the best possible efforts are being made to search the respondent No.4.

6. We have heard learned counsel for the parties and perused the material available on record.

7. The petitioner has filed this writ petition for issuance of a writ in the nature of habeas corpus. The writ of habeas corpus is an effective means of immediate release from the unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody are sufficient. For issuance of a writ of habeas corpus, the petitioner must show a prima facie case of unlawful detention of the subject.

8. While dealing with a petition of habeas corpus, a Constitution Bench of the Hon'ble Supreme Court in the matter of Kanu Sanyal v. District Magistrate, Darjeeling and others [(1973) 2 SCC 674] traced the history, nature and scope of the writ of habeas corpus. It has been held by Their Lordships that it is a writ of immemorial antiquity whose first threads are woven deeply “within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence”. Their Lordships further held that the primary object of this writ is the immediate determination of the right of the applicant's freedom and that was its substance and its end. Their Lordships further explaining the nature and scope of a writ of habeas corpus held in paragraph 4 as under: -

“The writ of habeas corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the produ