IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI &

HON'BLE SMT. JUSTICE ANURADHA SHUKLA ON THE 19^th OF NOVEMBER, 2024 WRIT PETITION No. 20892 of 2024 JANKI PRASAD PATEL Versus THE STATE OF MADHYA PRADESH AND OTHERS Appearance:

Shri Rupesh Patel – Advocate for petitioner.

Shri Abhijeet Awasthi – Deputy Advocate General for respondents/State.

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:-

i. To, issue writ in the nature of Habeas Corpus be issued commanding the respondents for the production of the son of the petitioner and appropriate order may also be passed to handover the custody of the son of the petitioner in the light of Act-2007.

ii. That, this Hon’ble High Court may kindly be pleased to award the cost of the petition.

iii. Any other order or orders and / or direction as your lordships may deem fit and proper.

2- Learned counsel for the petitioner submitted that, the son of the petitioner Sudeep Kumar Patel was working as a labourer in Pune, Signature Not Verified Signed by: ARUN KUMAR Maharashtra and on 14-06-2024 at 9:00 PM Sudeep Kumar communicated with his father that he is returning Home, however, he never returned. 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 detention or at leastt tthheerree mmuusstt bbee ssoommee ssuubbssttaannttiiaatteedd ggrroouunnddss rreeggaarrddiinngg 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 Signature Not Verified Signed by: ARUN KUMAR 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