IMPORTANT POINT
A Writ of Habeas Corpus cannot be issued without evidence of illegal confinement, even in cases of missing persons.

ORAL ORDER

(PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI)

1. This petition under Article 226 of the Constitution of India is filed praying for a Writ of Habeas Corpus directing respondent police authorities to produce the corpus i.e. husband of the petitioner who is missing since last about 7 months according to the petitioner.

2. While praying for a Writ of Habeas Corpus, a copy of application addressed to the Superintendent of Police, Kachchh at Bhuj dated 03.01.2024 from Bhavnagar by the petitioner wife stating that on 07.07.2023 her husband went missing from gate of Mundra Port. It is further asserted that despite Mundra Police being informed and telephoned repeatedly, they have not inquired into it. She has raised suspicion that they have not inquired whether he is alive or dead. She has complained about Mundra Police not providing any assistance to her.

3. When petition came up for hearing, we asked Mr. Das, learned advocate for the petitioner whether in absence of any assertion, either in her application made to the police or in the petition with regard to any illegal confinement of her husband by anyone, can this Court entertain a petition seeking a Writ of Habeas Corpus or not. Pursuant thereto, learned advocate for the petitioner submitted that in every case of missing person, a petition seeking a Writ of Habeas Corpus can be entertained. For the purpose, he has relied on a decision of the Supreme Court in the case of Devu G. Nair v. State of Kerala, rendered in Criminal Appeal No. 1730 of 2024 decided on 11.03.2024, more particularly, paragraph 16 thereof, wherein, guidelines for Courts in dealing with petitions for Habeas Corpus or petitions for police protection are formulated. Picking up word “missing person” from direction (d) contained in the said guidelines, it is submitted that even in case of a missing person, this Court has to entertain a petition for a Writ of Habeas Corpus. Reading paragraph 17 of the said decision, it is submitted that the guidelines must be followed in letter and spirit as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners and members of the LGBTQ+ communities in illegal detention. Based on it, it is submitted that it is the fundamental right of the person missing that he cannot be illegally confined and free to move wherever he/she wants.

3.1 Relying on another decision in the case of Alsia Pardhi v. State of MP and Others, reported in AIR 2014 SC 877, more particularly, paragraph 3(h) and (i), it is submitted that despite the case before the High Court being of a missing person, High Court by order in that case entrusted investigation to the CBI and appeal came to be allowed. Again, referring specific word, “missing person”, it is submitted that this petition praying for a Writ of Habeas Corpus for a missing husband of the petitioner, in absence of any assertion in the petition itself, or even in argument that in whose illegal confinement he is, praying to issue a Writ of Habeas Corpus.

3.2 Another decision relied on is in the case of Shafin Jahan v. Asokan K. M. and Others, reported in AIR 2018 SC 1933, more particularly, paragraph 5 thereof, it is submitted that corpus therein, despite promised to be brought to the house of a common friend, but it never happened and later, father of the corpus was informed that corpus escaped from the house of Aboobacker and had run away somewhere. Reading that, it is submitted that it was also a case of “missing person” wherein, Writ of Habeas Corpus is entertained.

3.3 Relying on all these decisions, it is submitted that respondents be called upon to find out major missing husband of the petitioner.

4. Considering the papers annexed with the petition, it appears that brother of missing husband of the petitioner has already got registered a missing complaint on 16.07.2023 alleging therein that on 04.07.2023, his brother along with two other persons in a truck went to deliver some goods at Adani Port, Mundra and o