Madhya Pradesh High Court: In a writ petition seeking issuance of a writ of habeas corpus for production of her daughter and two minor children, who went missing from Pune, a division bench of Vinay Saraf and Sanjeev Sachdeva, JJ., held that the writ of habeas corpus was not maintainable in the present case as there was no evidence of unlawful detention.
The petitioner alleged that her children were wrongfully confined. Dissatisfied with the police investigation following the missing person report filed on 05-04-2023, the petitioner approached the High Court.
The Court issued notices to the respondents on 25-07-2023, directing the submission of a status report. Initial status reports revealed extensive but unsuccessful search efforts across multiple states, including Odisha, Karnataka, and Chhattisgarh. On 17-01-2024, it was reported that the missing individuals had visited their parental village on 03-12-2023.
The Court noted that the report revealed that the missing individuals had visited their parental village voluntarily and were not under any wrongful confinement. The Court asserted that cases of missing persons should be investigated under the CrPC, not through habeas corpus petitions.
The Court stated that habeas corpus is a procedural writ designed to secure the release of persons unlawfully detained and is maintainable only when there is evidence of unlawful detention. The Court stated that mere absence or missing status does not constitute grounds for issuing the writ, the petitioner must establish a prima facie case of unlawful restraint or control.
“A writ of habeas corpus is not maintainable in respect of person who is simply missing and not in unlawful detention. Unlawful detention is the sine qua non for issuance of writ of habeas corpus.”
The Court referenced to Kanu Sanyal v. District Magistrate, Darjeeling, (1973) 2 SCC 674, Union of India v. Yumnam Anand M., (2007) 10 SCC 190 and Nimananda Biswal v. State of Odisha, (2023) SCC Online Ori 5628 and emphasised that habeas corpus cannot be issued for tracing missing persons unless illegal detention is established. The Court stated that habeas corpus is a procedural remedy for immediate release from unlawful detention.
“…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 and the constitutional Courts shall not entertain a habeas corpus petition, where there is no allegation of “illegal detention” or suspicion about any such “illegal detention”.”
The Court dismissed the petition and held that no prima facie case of unlawful detention was established. The Court directed the respondents to continue their search in accordance with the law and the existing missing person report filed by the petitioner.
[Simmi Bai v. Shrimaan Police Mahanirikshak Mahodaya, Writ Petition No. 16475 of 2023, Decided on 28-01-2025]
*Judgment by Justice Vinay Saraf
Advocates who appeared in this case:
Shri N.P.Rathore, Counsel for the Petitioner
Dr. Siddharth Singh Chouhan, Govt. Advocate, Counsel for the Respondents/State