Orissa High Court: In a criminal petition filed for issuance of writ of habeas corpus to produce the missing daughter of the petitioner, the Division Bench of S.K. Sahoo and Sibo Sankar Mishra, JJ. dismissed the petition and held that petition seeking writ of habeas corpus cannot be entertained to trace out a missing person and said that for such purpose, the petitioner can pursue other effective remedy.
In the matter at hand, the daughter of the petitioner was missing for a long period of time and the petitioner had lodged a first information report on 12-10-2022, however, no efficacious steps were taken to trace out the petitioner’s daughter.
The Court said that the present matter was a case of ‘missing person’ and no material was produced to show that the daughter of the petitioner was illegally detained by anyone. The Court referred to Union of India v. Yumnam Anand M., (2007) 10 SCC 190, wherein it was opined that case of ‘unlawful detention’ must be shown by the petitioner before the Court to issue the prerogative writ of habeas corpus. The Court cited a catena of judgments to show that establishing a ground of ‘illegal detention’ and a strong suspicion about any such ‘illegal detention’ is a condition precedent for moving a Habeas Corpus petition.
The Court said that writ of habeas corpus cannot be issued in a casual and routine manner. Further, the Court said that though it is a writ of right, it is not a writ of course. The Court stated that “the writ of habeas corpus is festinum remedium and power can be exercised in clear case”. The Court explained that ‘illegal confinement’ is a pre-condition to issue a writ of habeas corpus, it cannot be issued in respect of any and every missing person, more so when no person is alleged to be responsible for the illegal detention of the person for whose production before the Court, a writ is to be issued. Further, the Court said that the power under Article 226 of the Constitution of India cannot be exercised for tracing a missing person, based on a habeas corpus petition, which an investigating agency is empowered to investigate.
The Court said that in the present case, prima facie, no case of unlawful detention of the petitioner’s daughter by any person was shown. Therefore, the Court viewed that the writ of habeas corpus cannot be entertained to trace out a missing person and said that for such purpose, the petitioner can pursue other effective remedy. The Court allowed the petitioner’s counsel to withdraw the petition with liberty to seek appropriate remedy in accordance with law.
[Nimananda Biswal v. State of Odisha, 2023 SCC OnLine Ori 5628, Order Dated: 08-09-2023]
Advocates who appeared in this case :
For the petitioner: Advocate A.K. Pandey
For the respondents: Additional Government Advocate Saswata Pattanaik
*Deeksha Dabas, Editorial Assistant has reported this brief.
Buy Constitution of India HERE
