A writ of habeas corpus requires proof of illegal detention; merely reporting a missing person is insufficient.

ORDER

Per: Justice Sushrut Arvind Dharmadhikari This petition under Article 226 of the Constitution of India has been filed seeking issuance of writ in the nature of habeas corpus or any other suitable writ/order or direction for the following reliefs:-

7.1. To Summon entire relevant record from the Respondents for its kind perusal.

7.2. To issue writ in the nature of Habeus Corpus to direct the respondents to take necessary action for producing the Corpus (daughter Sifa Bano) before this Hon’ble Court.

7.3. To issue writ in the nature of mandamus to direct the respondents to take necessary action for producing corpus.

7.4. Any other relief Which this Hon’ble Court may deem fit.

Signature Not Verified Signed by: ARUN KUMAR

7.5. Cost of litigation.

2- Learned counsel for the petitioner submitted that petitioner is a labour. In the morning of 7/6/2024 he left for his work. His wife, son and daughter (corpus) were at home. At about 11:00 AM his wife found that the corpus is not inside the room, therefore, she searched her at the nearby places and when could not find the corpus, she informed the petitioner about the same. Petitioner immediately went to his house and tried to search the corpus at all possible places, but as the corpus was not traceable, therefore, the petitioner immediately rushed to the Police Station and narrated the whole story, but the police officials merely took the application of the petitioner and failed to take any proactive action in this regard. Moreover, instead of registering an FIR, the police lodged a missing person report, but till date no action has been taken on that behalf.

Hence, this petition.

3- Shri Awasthi, learned Deputy Advocate General raised a preliminary objection with regard to maintainability of this petition contending that the writ of habeas corpus cannot be issued in this matter as there is no allegation that the corpus is in illegal confinement of any private respondent. Besides, multiple reliefs, which are not at all in congruence, with the subject matter of this petition have been claimed. As such, on this count alone the petition is liable to be rejected at the threshold.

4- Having heard the learned counsel for the parties, the question that is germane to the controversy in hand is “as to whether a writ of habeas corpus can be issued in respect of a missing person?”

5- On perusal of the pleadings, which are on affidavit, it can be seen that there is no allegation of illegal confinement by any of the private respondents. It is a condition precedent that there must be an illegal Signature Not Verified Signed by: ARUN KUMAR detention or at least there must be some substantiated grounds regarding suspicion. In the absence of any such contention, no habeas corpus petition can be entertained under Article 226 of the Constitution of India . Habeas Corpus is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment. The special nature of a habeas corpus petition is to produce the body or person, for that purpose it must be established that a person is in illegal detention. The fundamental right and liberty is to be protected, only if there is an illegal detention, either by State or by a private individual.

6- A Constitution Bench judgment of the 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