Can't Issue Habeas Corpus Writ For A Missing Person More So When No One Is Alleged In FIR To Have Illegally Detained Him/Her: Allahabad HC

A bench of Justice Karunesh Singh Pawar observed thus while dismissing a habeas corpus plea filed by a mother seeking the production of her missing son.

“The petitioner has failed to establish a prima facie case of unlawful detention of her son. A Writ of Habeas Corpus cannot be issued by this Court for tracing out a missing person particularly when the F.I.R. of the missing has already been lodged more than one year back by the father of the detenue where there is no allegation of illegal detention,” the bench observed in its order.

Essentially, it was the case of the petitioner-mother of the missing boy that his son had been missing since June 25, 2022, from Shakti Nagar (Lucknow) and just a day before his disappearance, some scuffle took place between the child and respondent no.4 (a shikanji seller) and she apprehends that the missing boy had been kidnapped by respondent no.4.

On the other hand, the AGA for the respondent State submitted that the investigation in the case started immediately after lodging of the FIR and currently, the probe is ongoing and search operations are also going on.

It was also submitted that during the investigation, a dead body was received and his clothes and the DNA samples were sent to the Forensic Science Laboratory for testing.

Against this backdrop, the High Court, at the outset, noted that an FIR in the matter was lodged under Section 363 IPC on June 27, 2022, and in the FIR, the father of the missing boy had stated that his son had developed some relationship with the shikanji seller and he was last seen on the shikanji shop.

The Court further noted that in the FIR, no allegation had been made against respondent no.4 regarding illegal detention and now, after more than one year of the incident, the instant habeas plea had been filed alleging that her son had been kidnapped by unknown miscreants at the behest of respondent no.4.

Noting that no clear statement has been made by the deponent in this petition that the detenu has been illegally detained by respondent no.4, the Court observed that the writ petition is a definite improvement from a story of the prosecution in the FIR.

“While lodging the F.I.R. no allegation against respondent no.4 has been leveled by the complainant that he has kidnapped the detenue rather a simple missing F.I.R. was lodged and consequently the investigation started which is still pending. The information regarding missing of the detenue has been given to various new channels newspapers and pamphlets have been pasted across the city. However, no success has been gained by the police. It appears that in utter frustration and being annoyed by the investigation the petition has been filed by changing the prosecution story for the first time after more than one year by the deponent,” the Court remarked.

Further, stressing that the Writ of Habeas Corpus cannot be issued routinely and casually, the Court said that unless there is a clear case established by the petitioner prima facie to show that the detenue is in illegal confinement, no writ of Habeas Corpus can be issued.

Accordingly, the plea was dismissed by the Court.

Appearances

Counsel for Petitioner: Dadu Ram Shukla (D.R. Shukla), Manoj Kumar Singh

Counsel for Respondent: G.A.

Case title - Mahesh (Minor) Thru. Her Mother Smt. Meena @ Kiran vs. State Of U.P. Thru. Prin. Secy. Home Deptt. Lko And 3 Others [HABEAS CORPUS WRIT PETITION No. - 337 of 2023]

Case citation: 2023 LiveLaw (AB) 432

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