Case Of Missing Person Sans Strong Suspicion Of Illegal Detention Can't Come Under Ambit Of Habeas Corpus Plea: Gauhati HC

The Gauhati High Court recently held that missing person cases would not come within the ambit of a habeas corpus petition (without strong suspicion of illegal detention), but such cases are required to be registered under the regular provisions of the Indian Penal Code.

The Bench of Justice Kalyan Rai Surana was hearing a habeas corpus plea filed by one Mamoni Kakoty praying for a direction to recover her son, namely, Bhaskar Jyoti Kakoty who had gone missing since September 2016.

Cas in brief 

The petitioner submitted that her missing son was working as a Manager of a private company and simultaneously carrying on his own business of carrying foodgrains to godowns of Food Corporation of India in the State of Manipur. On 04.09.2016, she submitted, her son had gone out for business and never returned.

Thereafter, an FIR was lodged in the matter on the next dat, however, in October 2018, a report was submitted by the Golaghat Police that the matter was referred to CID Branch but the missing person could not be traced out.

Against this backdrop, it was submitted that even after 5 years have gone by and that the writ petition was pending for more than three years, but except for submitting status reports, the State Police could do nothing and was clueless about the missing person.

The counsel for the petitioner submitted that it was the responsibility of the Government to look after the security of its citizens and as the State could not provide security to her son and therefore, the State was duty-bound to pay compensation. It was also submitted that he may be under detention of Manipur extremists.

The State, on the other hand, submitted that compensation can be granted only if the right to life protected under Article 21 of the Constitution of India was violated by the State or its employees and also argued that public law remedy was not available to direct the State to pay compensation if a person goes missing out of his own volition

Court's observations 

Adverting to the facts of the case, the Court noted that there was no material on record to suggest that the son of the petitioner had gone missing after any action taken by the State Administration including Police, Para-military and Armed Forces.

The Court also took into account the fact that there was no material to show that the missing person had any threat perception from any militant or extremist groups and the State Police had never been called upon to provide any police protection to the missing person.

Therefore, the Court ruled that there was no material to show that the son of the petitioner had gone missing because of any negligence on part of the Police of State Administration.

Against the backdrop, the Court referred to the case of Selvaraj vs. The State, H.C.P. 2309/2016, to observe that in that case, the Madras HC had held that a habeas corpus petition would not be maintainable in cases of missing persons and that it would only be maintainable only if the personal life and liberty guaranteed under Article 21 is infringed by State or by any private individual.

Further, the Court stressed that the Constitutional Courts across the country have held 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.

Thus, the Court further held that the legal proposition would be that the Constitutional Courts would not entertain habeas corpus petitions where there is no allegation of illegal detention or suspicion regarding illegal detention.

Lastly, dismissing the instant habeas corpus plea, the Court remarked thus:

"As noted in this case, no apprehension of the kidnapping of illegal detention was made when the FIR had been lodged and at no point of time till date, any witness examined by the police so far had expressed their apprehension that the son of the petitioner was kidnapped by any person including extremists. Accordingly, there being no iota of doubt that the son of the petitioner had suffered any illegal detention, this habeas corpus petition stands dismissed."

However, the Court did advise the petitioner to approach a competent Court of law to seek monetary compensation, the claim for which, the court directed, shall be decided in its own merit without being influenced by any observations made in the instant case.

Case title - Mamoni Kakoty v. The State of Assam and 6 Ors.

Click here To Download Order

Read Order