Writ Of Habeas Corpus Can't Be Issued In 'Missing Persons' Case: Chhattisgarh High Court

The Chhattisgarh High Court recently held that cases of missing persons cannot be brought under the provision of the Habeas Corpus petition.

Noting that such cases are to be dealt with as regular cases by the competent Court of Law and that extraordinary jurisdiction of the Constitutional Courts cannot be invoked, a Division Bench of Justices Arup Kumar Goswami and N.K. Chadravanshi observed,

"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."

The petitioner has filed a writ petition to issue a writ like a habeas corpus directing the respondents to produce her missing daughter. It is stated in the petition that the petitioner's daughter got married in 2011 and was blessed with a female child. However, sometimes the family members raised suspicion about the petitioner's daughter that she suffered from an evil soul. Therefore, the in-laws begin to torture her physically and mentally. In furtherance, the petitioner's daughter made a complaint before Mahila Police against her husband and his family members.

After a counseling session, the petitioner's daughter went with her husband to his home with the promise to keep her peaceful. However, from that day onwards, there is no information about the well-being of the petitioner's daughter. The police have registered a missing report, but the petitioner apprehends that her husband and his family have killed her daughter. Despite having made a complaint, it is alleged that the Inspector General of Police has not taken any action in the search for the petitioner's daughter.

The Court had issued several directions to find the petitioner's daughter during the hearing. However, despite all the possible efforts of the police, they weren't able to trace the missing person.

The court relief on the case of Kanu Sanyal v. District Magistrate, Darjeeling & Ors (1973). In the said case, the Supreme Court had traced the history, nature, and scope of the writ of habeas corpus. In that case, habeas corpus is "a writ of immemorial antiquity whose first threads are woven deeply "within the seamless web of history and untraceable among countless incidents that constituted a total historical pattern of Anglo-Saxon jurisprudence."

The Court also referred to the case of Union of India v. Yumnam Anand M. & Anr. where while explaining the nature of a writ of habeas corpus, the Court had held,

"Article 21 of the Constitution has declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement." The writ has been described as a writ of right which is grantable ex debito justitiae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause, and the return is not good and sufficient, he is entitled to this writ as of right."

The Court, after having referred to a catena of judgments, held that what remains consistent is 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."

The Court refused to issue an extraordinary writ, noting that no averment alleges that the petitioner's daughter has been illegally detailed either by the official respondents or her husband. It emphasized that a writ of habeas corpus is not to be issued as a matter of course, and clear grounds must be made for issuing a writ of habeas corpus.

Case Title: Jayamati Sahu v. State of Chhattisgarh & Ors

Citation: 2022 LiveLaw (Chh) 34

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