1. Habeas corpus requires unlawful detention; missing person without confinement evidence is not sufficient. (Para 8 , 9 , 10 , 11 )
Back
HIGH COURT OF MADHYA PRADESH
Sanjeev Sachdeva, CJ, Vinay Saraf, J
Krishna Kumar Sharma – Appellant
Versus
The State of Madhya Pradesh – Respondent
WRIT PETITION No. 47706 of 2025
1. Habeas corpus requires unlawful detention; missing person without confinement evidence is not sufficient. (Para 8 , 9 , 10 , 11 )
2. Habeas corpus lies only for unlawful detention; mere missing person does not establish unlawful confinement. (Para 7 , 8 )
3. Petition disposed; no order to produce corpus; petitioner may pursue missing person report. (Para 12 , 13 )
No, unless the person is shown to be in unlawful detention. A missing person, without evidence of confinement, does not justify habeas corpus. (Para 8 , 9 , 11 )
The petitioner must establish a prima facie case of unlawful detention. The writ is not a course but a right only if illegal confinement is shown. (Para 7 , 8 )
No. If the person left voluntarily and there is no allegation of wrongful confinement or custody by another, habeas corpus is not maintainable. (Para 10 )
The petitioner should pursue the missing person report under regular criminal law provisions. Habeas corpus is not designed for investigating missing persons. (Para 11 , 12 )
Per: Hon'ble Shri Justice Vinay Saraf
1. The instant habeas corpus petition is preferred by petitioner for
production of his brother Sunil Kumar Sharma who left the company of
petitioner and his family members by eloping with respondent no.6 in the
year 2002.
2. Learned counsel for the petitioner submits that brother of the
petitioner Sunil Kumar Sharma is in illegal custody and on 16.12.2024 a
representation was submitted before the Inspector General of Police, Bhopal
mentioning that a missing person report was lodged by father of the
petitioner at Police Station- Kotwali, District Hoshangabad on 30.12.2002
Signature Not Verified
Signed by: PREETI TIWARI
Signing time: 09-02-2026
17:10:15
NEUTRAL CITATION NO. 2026:MPHC-JBP:8649
2 WP-47706-2025
and since then the brother of the petitioner has not been traced. He demanded
to communicate the outcome of missing person report no. 60/2002 dated
30.12.2002.
3. From the record, it appears that the brother of the petitioner has
left the house on 16.12.2002 and since then there is no information available
regarding the corpus. The petitioner lodged fresh missing person report
no.28/2025 at Police Station- Kotwali, District Hoshangabad by stating that
his brother has left the home on 18.12.2002 stating that he is going to
Shirdi. After the year 2002, for the first time, petitioner lodged the report in
the month of December, 2024. During the period of 22 years, nothing has
been heard in respect of corpus, Sunil Kumar Sharma.
4. The habeas corpus petition is maintainable only in case the corpus
is in wrongful confinement or illegal custody of someone else. Upon the
allegation that the brother of the petitioner left the house by eloping with
respondent no.6 in the year 2002, no new cause of action arises for filing
habeas corpus petition.
5. State has also filed the status report which states that since 2002,
nothing has been heard about the corpus even the search was carried out at
Shirdi.
6. It is apparent that the corpus is not in wrongful confinement and
he has gone on his own. Habeas corpus petition is maintainable only in case
the corpus is wrongfully confined by any authority or private persons. Writ
of habeas corpus is an effective means of immediate release from an
unlawful detention. Physical confinement is not necessary to constitute
Signature Not Verified
Signed by: PREETI TIWARI
Signing time: 09-02-2026
17:10:15
NEUTRAL CITATION NO. 2026:MPHC-JBP:8649
3 WP-47706-2025
detention, however control or custody are sufficient for issuance of writ of
Habeas Corpus. Petitioner failed to show prima facie case of unlawful
detention of corpus. The constitution bench of the Supreme Court considered
the scope of writ of habeas corpus in the matter of Kanu Sanyal Vs. District
Magistrate, Darjeeling and Ors. (1973) 2 SCC 674 and in paragraph 4 has
held as under:
"4. ..... the writ of habeas corpus that it 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
order that appropriate judgment be rendered on judicial enquiry
into the alleged unlawful restraint”. The form of the writ
employed is “We command you that you have in the King's Bench
Division of our High Court of Justice — immediately after the
receipt of this our writ, the body of A.B. being taken and detained
under your custody-together with the day and cause of his being
taken and detained -to undergo and receive all and singular such
matters and things as our court shall then and there consider of
concerning him in this behalf”. The italicized words show that the
writ is primarily designed to give a person restraine
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top