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IN THE HIGH COURT OF ORISSA, CUTTACK, CUTTACK
S. K. MISHRA, A. K. MISHRA, JJ.
Chaitanya Madhi - Petitioner
Versus
State of Odisha and Ors. - Opposite Parties
WPCRL No.561 of 2008
Decided On : 27-11-2019
HABEAS CORPUS - Missing Person - Article 22 of the Constitution - 17. 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 production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, 'in the order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restrain'. But the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness. The essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ, that is its substance and end. The production of the body of the person alleged to be wrongfully detained is ancillary to this main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of t he subject illegally detained.
Fact of the Case:
The petitioner filed a writ of habeas corpus seeking the production of his missing father, who was allegedly taken away by unknown persons. The police and state officials were unable to trace the missing person, and the petitioner sought compensation for the failure to protect his father's life and liberty.
Finding of the Court:
The court found that the writ of habeas corpus is not maintainable for a missing person who is not illegally confined. The court rejected the writ petition, stating that the missing person might have chosen to stay away, and such volition is not a violation of Article 21 of the Constitution.
Issues: The main issue was whether a writ of habeas corpus is maintainable in respect of a missing person.
Ratio Decidendi: The court held that the writ of habeas corpus is essentially a procedural writ designed to secure the release of a person who is illegally restrained of his liberty. It is not maintainable for a missing person who is not illegally confined.
Final Decision: The court rejected the writ petition, stating that the writ of habeas corpus is not maintainable for a missing person who is not illegally confined.
JUDGMENT :
A. K. Mishra, J.
1. This writ of habeas corpus was filed on 16.10.2008 seeking following relief:-
“Issue a Rule Nisi, calling upon the opposite party no.1 to 4 with further direction to produce Indra Madhi in person in the Hon’ble Court on an appointed date, taking the assistance of the opposite party no.5 who was instrumental to the disappearance of Indra Madhi in connivance with the police officials; and
May issue further direction to the opposite parties to submit their reports, why he is not forwarded to the Court for such a long time, to comply with the constitutional provision as specified under Article 22 of the Constitution.”
2. Petitioner is the son of Indra Madhi. It is alleged that Indra was a member of Scheduled tribe and also elected Sarapanch of the Chimtapalli Grama Panchayat under Korukonda Panchayat Samiti in the District of Malkanagiri.
On 26.8.2008, one Akula Sarkar of M.V. 123 village was arrested. He was not forwarded to Court. Indra, being Sarpanch along with Sri Deba Kawasi, the Sarpanch of Nilakamberu G.P. and another Subas Padiami met the Collector, Malkangiri twice against illegal detention of Akula by police. On 12.9.2008, police took Indra to the office of Superintendent of Police, interrogated and made him free.
One Bikash Halder, opposite party no.5 was the ward member of Tumsapalli G.P. He used to keep watch over the movements of Indra.
On 16.9.2008, Indra Madhi and Reena Sodi attended Block meeting. Indra brought Reena in his motorcycle and left in her village. At about 5 P.M. he was returning on the M.V.22 Canal Road. Six persons, in plain cloth, in three motorcycles intercepted Indra on his way and took away him to unknown destination. The mobile phone of Indra did not respond thereafter. His motorcycle was not found.
On 18.9.2008, petitioner lodged an F.I.R. at Orkel P.S. he also lodged another F.I.R. on 19.9.2008 at Malkangiri P.S. as I.I.C., Orkel P.S. instructed him that the spot was coming under Malkangiri P.S.
On 20.09.2008, petitioner along with others filed complaint before Collector, Malkangiri. The Collector sent a copy of complaint to S.P., Malkangiri (Opposite Party no.2). The S.P. assured them to take appropriate steps to trace out Indra Madhi within a week.
The petitioner thereafter approached both the police stations but they did not supply any information about his missing father. Instead, the Superintendent of Police threatened them and advised them not to proceed further. When Bikas Halder, Opposite Party no.5 was asked about Indra, he was enraged and threatened the villagers.
Petitioner specifically avers that this was the state of affairs in Malkangiri area and the police plea was that they were combating Naxals.
3. Notice sent to O.P. No.5 has been returned with postal endorsement “No such addressee”. Petitioner has not furnished any other address vide order dtd.2.12.2008. On behalf of opposite party no.2, S.P., Malkangiri, D.S.P., Malkangiri has filed an affidavit on 7.10.2009. Opposite party no.3, I.I.C., Malkangiri filed affidavit on 22.6.2009 and lastly on 24.6.2019. Opposite party no.4, I.I.C., Orkel P.S. also filed affidavit on 10.8.2009.
3-A. The petitioner also filed additional affidavit to provide clue of his missing father on 2.3.2009. The photograph of Indra was given to I.I.C., Malkangiri. The Court continued to obtain status report in regular intervals about the progress and steps taken to search the missing Indra.
A decade old monitoring reveals that “enquiry is still continuing”. It was stated and lastly it is stated in the affidavit by opposite party nos.2 and 3 that on 22.9.2008, the petitioner had reported at Malkangiri P.S. in writing regarding missing of his father Indra Madhi since 16.9.2008 and accordingly the fact was reflected in Malkangiri P.S. station diary entry No.366 dated 22.9.2008 and Man Missing Register Sl. No.11/2008. The petitioner has mentioned in his report that, his missing father was last seen at village Tumsapalli since 16.09.2008 5.00
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