Writ Of Habeas Corpus Not Maintainable in Respect of Missing Person When There Is No Allegation Of Unlawful Detention: Madhya Pradesh HC
The Habeas Corpus Petition before the Madhya Pradesh High Court was preferred by the petitioner under Article 226 of the Constitution.
The Madhya Pradesh High Court has explained that a writ of habeas corpus is not maintainable in respect of a person who is simply missing and not in unlawful detention.
The Habeas Corpus Petition before the High Court was preferred by the petitioner under Article 226 of the Constitution seeking a direction to the Police Authorities to search her daughter and two minor children.
The Division Bench comprising Justice Sanjeev Sachdeva & Justice Vinay Saraf affirmed, “Thus, the constitutional Courts across the country predominantly held in catena of judgments 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 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".
Advocate N.P. Rathore appeared for the petitioner while Government Advocate Dr. Siddharth Singh Chouhan for the Respondents/State.
Factual Background
The petition before the High Court was preferred by the mother of the corpus on the ground that the corpus is missing from Pune. A missing person report was filed at the Police Station stating that the petitioner’s daughter had been wrongfully confined by one Dileep Choudhary.
The Police Officers had on an earlier occasion informed the Court that after the registration of the missing person report, intensive steps were taken to search the corpus. On December 3, 2023 , the Police Officers prepared a memorandum wherein the fact was verified by the villagers that the corpus visited there and had gone on motorcycle with a boy along with children as per her own wish.
Reasoning
On a perusal of the facts of the case, the Bench noted that the corpus is not in any wrongful confinement and she had gone on her own along with minor children. It was explained by the Court that the petition is preferred as habeas corpus and this 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 detention, however, control or custody is sufficient for the issuance of a writ of Habeas. The Petitioner must show a prima facie case of unlawful detention of the corpus.
Referring to the judgments in Union of India v. Yumnam Anand M. alias Bocha alias Kora alias Suraj and another (2007) and Home Secretary (Prison) and others v. H. Nilofer Nisha (2020), the Bench said, “A writ of habeas corpus is not maintainable in respect of person who is simply missing and not in unlawful detention. Unalwful detention is the sine qua non for issuance of writ of habeas corpus.”
The Bench further held, “Cases of missing persons cannot be brought under the provision of the Habeas Corpus petition. Cases of missing persons are to be registered under the regular provisions of the Indian Penal Code and the Police officials concerned are bound to investigate the same in the manner prescribed under the Code of Criminal Procedure. Such cases are to be dealt as regular cases by the competent Court of law and the extraordinary jurisdiction of the Constitutional Courts cannot be invoked for the purpose of dealing with such cases of missing persons.”
On the facts of the case, the Court noted that the petitioner failed to establish a prima facie case of unlawful detention of her daughter and two minor children by any particular person. On the contrary, it was revealed from the status report that the corpus along with her minor children went to unknown place as per her own wish and she was not in any wrongful confinement.“Therefore, we are of the considered view that a petition seeking the issuance of writ of habeas corpus cannot be entertained to trace out the missing person and for such purpose the petitioner can pursue other effective remedy", it said.
The Bench disposed of the Petition by directing the respondents to continue the search of the corpus and her minor children in accordance with law in furtherance of missing person report lodged by the petitioner.
Cause Title: Simmi Bai v. Shrimaan Police Mahanirikshak Mahodaya and Others (Neutral Citation: 2025:PHC-JBP:5189)
Appearance:
Petitioner: Advocate N.P. Rathore
Respondent: Government Advocate Dr. Siddharth Singh Chouhan
