A writ of Habeas Corpus cannot be issued for tracing a missing person, especially when there is no allegation of illegal detention in the FIR.

JUDGMENT :

(Karunesh Singh Pawar, J.)

1. Supplementary Affidavit filed by learned counsel for the petitioner is taken on record.

2. This petition has been filed by the detenue through her next friend Smt. Meena @ Kiran (mother of the detenue) praying for issuance of a writ in the nature of Habeas Corpus directing the respondents to produce the corpus of the child/detenue forthwith.

3. Heard learned counsel for the petitioner as well as Shri Alok Tewari, learned A.G.A. for respondent nos. 1 to 3.

4. Notices to respondent no.4 is dispensed with in view of the proposed order.

5. Learned counsel for the petitioner has submitted that the detenue is missing since 25.6.2022 at 4.00 pm to 6.00 pm from Mohalla Shakti Nagar, Police Station Gazipur, Lucknow. He submits that some scuffle took place between the child and respondent no.4 and on the very next day the child became missing, hence, an application was moved at Police station Gazipur. Thus it is apprehended by the petitioner that the detenue has been kidnapped by respondent no.4.

6. It has been further submits that an F.I.R. under Section 363 Indian Penal Code regarding missing of the detenu was registered as F.I.R. No.326 of 2022 under Section 363 I.P.C., Police Station Gazipur, District Lucknow. It is alleged in the F.I.R. by the complainant Ramtej, who is the husband of the deponent of this petition, that his son Mahesh, aged about 9 years went missing from yesterday between 4.00 pm to 6.00 pm. He used to drink shikanji for the last two months and he had developed some relationship with shikanji seller and he was last seen on the shikanji shop. No allegation in the F.I.R. whatsoever has been made against the respondent no.4 regarding illegal detention. Pamphlet regarding the missing of the detenue have been pasted in the local area of the Police Station Gazipur one of which pamphlet is also on record. Nothing except missing of the detenue has been mentioned in the F.I.R. as well as in the pamphlet. The F.I.R. was lodged on 27.6.2022. Now the writ petition is filed after more than one year i.e. on 17.10.2023 by the mother on behalf of the detenue by making improvement in the prosecution case alleging that Mahesh appears to have been kidnapped by unknown miscreants at the behest of respondent no.4. Still no clear statement has been made by the deponent in this petition that the detenu has been illegally detained by respondent no.4. The facts pleaded in the writ petition are definite improvement from a story of the prosecution in the F.I.R. which has been alleged by none other than father of the detenue.

7. Learned counsel for the petitioner has relied on a judgement of the Hon'ble Supreme Court in the case of Home Secretary (Prison) and others vs. H.Nilofer Nisha reported in 2020(14) SCC 161.

8. Learned A.G.A. for the respondent State, on the basis of instructions received, which is taken on record, has submitted that the investigation was started immediately after lodging of the F.I.R. for search of the missing child/detenue. DCRB has been informed and posters have been pasted at the public places. The investigation is going on. Search operations are also going on. Information regarding missing has been given in various newspapers and broadcast in All India Radio and Doordarshan still the missing persons has not been recovered. During investigation one dead body has been received and his clothes and the DNA samples have been sent for Forensic Science Laboratory for the testing.

9. It is further submitted by learned A.G.A. that it is clear from perusal of the F.I.R. that it is a case of missing and F.I.R. was rightly lodged by the father of the detenu. After more than one year since the deponent of this petition being the mother is not satisfied with the investigation by making improvement in the prosecution story has alleged that at the behest of respondent no.4 some unknown miscreants have kidnapped the detenue. He submits that where missing report has been lodged the petition