Writ Of Habeas Corpus Can’t Be Issued To Trace Out ‘Missing Persons’: Orissa High Court

The Orissa High Court has reiterated that the writ of habeas corpus cannot be issued to trace out ‘missing persons’ as proving ‘illegal detention’ by a particular person is a pre-condition before the said writ can be put to use.

While declining to grant relief to the petitioner praying for issuance of the writ to trace out her daughter, the Division Bench of Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra observed,

“Writ of habeas corpus cannot be issued in a casual and routine manner. Though it is a writ of right, it is not a writ of course. The writ of habeas corpus is festinum remedium and power can be exercised in clear case. Illegal confinement is a pre-condition to issue a writ of habeas corpus.”

The daughter of the petitioner was untraceable since long, for which he had lodged an F.I.R. However, he alleged that though almost a year elapsed since the filing of the F.I.R., the police did not take any efficacious step to trace out his daughter. Thus, he approached the High Court seeking issuance of the writ of habeas corpus.

Court’s Observations

After hearing the submission made on behalf of the petitioner, the Court queried as to how the demand for issuance of the writ of habeas corpus is maintainable since the matter seemed to be a case of ‘missing person’.

“No material was produced to show that the daughter of the petitioner has been illegally detained by anyone. It is needless to say that the Court has to be satisfied about the factum of ‘illegal detention’ before it proceeds to entertain a petition seeking issuance of the writ of habeas corpus,” the Court added.

The Court then proceeded on to place reliance upon a number of judgments rendered by the Supreme Court as well as various High Courts on the settled position of law that the writ of habeas corpus cannot be issued in missing person cases.

It referred to the decision of the Apex Court in Union of India v. Yumnam Anand M. alias Bocha alias Kora alias Suraj & Anr. wherein it was held that the applicant must show a prima facie case of ‘unlawful detention’. Once he shows such a cause and the return is not good and sufficient, he is entitled to the writ of habeas corpus as a matter of right.

The Bench also referred to the judgment of the Supreme Court in Home Secretary (Prisons) & Ors. v. H. Nilofer Nisha wherein it was held as follows:

“Even though, the scope may have expanded, there are certain limitations to this writ and the most basic of such limitation is that the Court, before issuing any writ of habeas corpus must come to the conclusion that the detenu is under detention without any authority of law.”

In this case, the Court noted, the petitioner could not establish a prima facie case of ‘unlawful detention’ of his daughter by any particular person, rather it was submitted on his behalf that his daughter has been missing.

“It cannot be issued in respect of any and every missing person more so when no named 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,” the Court added.

Accordingly, the petition was dismissed after granting liberty to the petitioner to pursue other effective legal remedy.

Case Title: Nimananda Biswal v. State of Odisha & Ors.

Case No.: WPCRL No. 124 of 2023

Date of Order: September 08, 2023

Counsel for the Petitioner: Mr. A.K. Pandey, Advocate

Counsel for the State: Smt. Saswata Patnaik, Addl. Govt. Advocate

Citation: 2023 LiveLaw (Ori) 95

Click Here To Read/Download Order