Amit Talukdar, Sankar Prasad Mitra ( 1 ) A weeping mother has moved this application for Habeas Corpus who suffers the distraught pain of missing of her minor girl Kumari Kanan Roy for the following direction:"a) Issue writ in the nature of Habeas Corpus commanding the respondent nos. 2 to 6 to produce the minor victim girl, Kanan Roy, dead or alive before this Hon'ble Court and to hand over the victim minor girl to the petitioner (mother)"and other subsidiaries. ( 2 ) AFTER admitting this writ application we directed issuance of notice on respondent Nos. 7 to 15 since we had found respondent Nos. 1 to 5 and respondent No. 16 has already entered appearance. ( 3 ) RESPONDENT No. 7 being untraceable could not be served. ( 4 ) DIRECTIONS for affidavits were passed but, however, no return has been filed by any of the parties. However, learned Counsel for the respondent Nos. 1 to 5 has produced the documents in support of his case. ( 5 ) ON the prayer of the learned Counsel for the petitioner respondent No. 17 stood deleted as he had no cause of action against the said respondent. ( 6 ) THE petitioner happens to be the mother of one Kumari Kanan Roy aged about 12 years. Kumari Kanan Roy on the date of occurrence (i. e. on 11. 1. 03 at about 10. 45 a. m.) left for her school Nahata Sarada Sundari Bailka Bidyamandir within police station Gopalnagar, Dist. North 24-Parganas but as she did not return home searches were made for tracing her out and it came to be revealed that respondent No. 7 who happens to be her private tutor with the help of the other respondents had kidnapped the minor daughter of the petitioner. ( 7 ) FACTUAL matrix of the case is required to be stated for better appreciation of the application which shows that : pursuant to the written information lodged by the son of the petitioner gopalnagar Police-station Case No. 4 dated 15. 1. 2003 under sections 363 and 366 of the Indian Penal Code was registered for investigation against the respondent Nos. 7, 8 and 10. But, unfortunately the victim girl Kumari kanan Roy could not be traced. 1. 2003 under sections 363 and 366 of the Indian Penal Code was registered for investigation against the respondent Nos. 7, 8 and 10. But, unfortunately the victim girl Kumari kanan Roy could not be traced. ( 8 ) A writ application under Article 226 of the Constitution of India was preferred by the petitioner and her son making the respondent Nos. 3, 5,1 and the department of the respondent No. 2 as party seeking the following relief : "a) A writ in the nature of mandamus commanding the respondent No. 2 to transfer the case to the respondent No. 4 for investigation and to recover the victim girl Kanan Roy. " ( 9 ) THE said writ application [w. P. 5059 (W) of 2003] is still pending. It appears from the ordersheet passed by the Writ Court that a report was called for from the respondent No. 4 directing him to lake necessary steps to find out the missing girl. ( 10 ) WE had requested for placing the file before us and upon reading the same we find the report of the respondent No. 4 under his dated signature of 14. 5. 2003 that steps have been taken for issuance of Warrant of Arrest and schoolmates of the victim were interrogated and source were engaged to locate the hide out of the respondent No. 7 and other etc. The writ application, we find, is very much pending and there is direction that the hearing of the application and as the matter has stood adjourned. ( 11 ) NOW against this background we have to appreciate our powers with regard to law of Habeas Corpus. The object of issue of the Writ of Habeas Corpus is to ascertain whether there is any legal justification for the detention of the person in custody and the onus would lie on the person detaining him to show as to whether such detention was legal to justify the same. ( 12 ) A writ in the nature of Habeas Corpus is a prerogative writ by virtue of which the causes and validity of detention of a person are investigated by summary procedure. If the authority having his custody does not satisfy the court with regard to the deprivation of his personal liberty is in accordance with the procedure established by law then the detenu shall have to be set forth at liberty. If the authority having his custody does not satisfy the court with regard to the deprivation of his personal liberty is in accordance with the procedure established by law then the detenu shall have to be set forth at liberty. Such jurisdiction cannot be used to usurp the ordinary administration of criminal justice. There are two types of detention which can be investigated by virtue of exercise of power of Habeas Corpus by the Court. One is preventive detention by virtue of an order of the detaining authority: second is illegal detention of someone at the behest of another person. It is the latter type of detention that we have been purportedly asked to look into. ( 13 ) LEARNED Counsel for the petitioner has taken us through the entire gamut of the writ application, the averments therein including the annexures. He has submitted that the respondent No. 7 is having control over the minor girl of the petitioner after having kidnapped her with the help of the other respondents and the respondent Nos. 1 to 5 has not yet taken any effective steps for securing the release of the said victim girl Kumari Kanan Roy from the custody of the respondent No. 7. He has prayed for the investigation may be transferred to the respondent No. 16 so as to get the correct picture of the entire issue. ( 14 ) LEARNED Counsel for the petitioner has submitted that although this is a writ in the nature of Habeas Corpus the Court can mould the relief sought for and pass adequate directions for tracing out the missing girl of the petitioner. In this context he referred to the decision of B. R. Ramabhadriah vs. Secretary, food and Agriculture Department, Andhra Pradesh and Ors. , AIR 1981 SC 1653 . ( 15 ) NEXT the learned Counsel referred to the Division Bench decision of our court in the Committee for Protection of Democratic Rights and Anr. vs. State of west Bengal and Ors. , 2001 (2) CLJ 526 (HC) and a Single Bench decision of shyamal Kumar Dhar and Anr. vs. State and Ors. , 1998 (1) CLJ 392 and submitted it would now only be appropriate that for the purpose of fair investigation the respondent No. 16 is entrusted with the same. vs. State of west Bengal and Ors. , 2001 (2) CLJ 526 (HC) and a Single Bench decision of shyamal Kumar Dhar and Anr. vs. State and Ors. , 1998 (1) CLJ 392 and submitted it would now only be appropriate that for the purpose of fair investigation the respondent No. 16 is entrusted with the same. ( 16 ) SUMMING up learned counsel for the petitioner has submitted that unless directions in the nature as sought for is passed by this Court the petitioner would not be able to get back the custody of her minor girl and has implored the Court for necessary direction in that regard. ( 17 ) ON behalf of the respondent Nos. 12, 13, 10, 11 and 8 it was submitted that the writ application would not be maintainable as the victim girl is not in the custody of any State authority or any definite person as such this Court would not be permitted to proceed in the direction as prayed on behalf of the petitioner. He referred to a Division Bench decision of our Court in Chhabi khanra and Ors. vs. State of West Bengal and Ors. , 1999 C Cr. LR (Cal) 84. He thereafter referred to the decision of Vidya Verma vs. Shiv Narain Verma, AIR 1956 SC 108 in case of violation of the right to personal liberty by a private individual writ remedy would not be available and he should seek his redressal under the ordinary law. ( 18 ) LEARNED Counsel for the said respondents further submitted that since the respondent No. 7 is absconding the other respondents, simply by virtue of being related to him, cannot be implicated in the instant matter as there is no allegation against them and they have been wrongly implicated and the writ application being not maintainable should be dismissed. ( 19 ) LEARNED Counsel for the respondent No. 14 submitted that he is in no way connected with the incident and may be absolved. ( 20 ) LEARNED Counsel for the State has produced the case diary and invited our attention to the chargesheet showing the respondent No. 7 has been described as an absconder and proclamation and attachment has been issued against him. Respondent Nos. 8, 9, 10, 12, 13 has also been sent up in the chargesheet whereas final report has been submitted in respect of respondent nos. Respondent Nos. 8, 9, 10, 12, 13 has also been sent up in the chargesheet whereas final report has been submitted in respect of respondent nos. 11, 14 and 15. He has produced a xerox copy of the chargesheet and submitted that serious efforts are being made to trace out the victim girl and there is no laches absolutely on the part of the investigating agency. ( 21 ) LEARNED Counsel for the State has referred to the case diary and submitted that the accused persons have been arrested and the police are taking active steps for apprehending the respondent No. 7. ( 22 ) AFTER having heard the submission made at the Bar while we endorse the feeling of the petitioner we are afraid that the exercise of the power of writ in the nature of Habeas Corpus would perhaps not be feasible in the fact situation of the instant case. We agree with the learned Counsel for the petitioner that in a writ the prayer can be moulded for giving substantial relief to the petitioner where she is entitled and the ratio of the decision in B. R. Ramabhadriah vs. Secretary, Food and Agriculture Department, Andhra Pradesh and Ors. , (supra) is a trite position. There remains no dispute. ( 23 ) BUT, while exercising our powers vested under Article 226 of the constitution of India in respect of a writ in the nature of Habeas Corpus there are certain guidelines and restrictions which has to be taken into account before we act on the basis of the prayer of the petitioner beyond the scope of the purview of the law of Habeas Corpus. We shall advert to the same in details later. ( 24 ) SO far as the decision of the Division Bench and the Single Bench of our court in the Committee for Protection of Democratic Rights and Anr. (supra) and shyamal Kumar Dhar and Anr. (supra), respectively we feel the same are quite distinguishable. The ratio of the decision in the Committee for Protection of democratic Rights and Anr. (supra) would be difficult to apply in favour of the petitioner in the fact situation of the instant case. (supra) and shyamal Kumar Dhar and Anr. (supra), respectively we feel the same are quite distinguishable. The ratio of the decision in the Committee for Protection of democratic Rights and Anr. (supra) would be difficult to apply in favour of the petitioner in the fact situation of the instant case. There in connection with a murder case impartiality of the investigation was in question and the Division bench fell that within the mandate of Article 21 of the Constitution the parties are entitled to a fair investigation and no useful purpose would be served if the state Investigating Agency continued with the same and it was transferred to the CBI. In the present case we have seen that the investigation has, although purportedly proceeded in an indifferent fashion, and somewhat passively, achieved some momentum and materials were collected pursuant thereof which has resulted in submission of chargesheet and steps are on for seeking the apprehension of the respondent No. 7. ( 25 ) SO far as the decision of Shyamal Kumar Dhar (supra) is concerned we feel the same is quite dicernible. ( 26 ) THE Division Bench decision of Chhabi Khanra and Ors. (supra), cited by the learned Counsel for the respondent Nos. 8, 10, 11,12 and 13, in our view, does not help him in any manner; on the contrary, it operates against him as there it was held that writ of Habeas Corpus can lie not only against the State authority but also against private individual who is holding illegal detention of a person. We failed to understand how the Division Bench decision of Chhabi khanra and Ors. (supra) helps the argument of learned counsel in any manner. ( 27 ) THE Constitution Bench in Vidya Verma (supra) was also, in our most humble view, does not cover the scope of discussion in the present application although the point which has been sought to be impressed upon remains undisputed were there is a remedy available under the ordinary law extraordinary writ in the nature of Habeas Corpus would not be entertainable. There cannot be any qualms over the same. There cannot be any qualms over the same. ( 28 ) ON the basis of an appreciation of entire issue we find that what falls for consideration in the present writ application is whether the minor daughter of the petitioner has been illegally confined by the respondent No. 7 in the light of the submissions made on behalf of the petitioner and denial thereof. ( 29 ) NO return has been filed on behalf of any of the respondents. ( 30 ) HOWEVER, we proceed to dispose of the application on the basis of the materials available and in the light of the case diary, produced by the learned counsel for the State. We have carefully gone through the materials available in the application and have considered the same in the light of the submissions. Lest we may be guilty of repetition it would be profitable to reiterate the basic principle in respect of assuming jurisdiction in a Habeas Corpus matter. ( 31 ) A writ in the nature of Habeas Corpus filed on behalf of a detenu can be issued by the Court directing the person who has detained another such person to produce the latter before the Court so as to enable the Court to know on what ground he has been detained. After perusing the return if it is found that such person is illegally detained he will be directed to be set free forthwith, that is the nature and intent of the remedy under the law of Habeas Corpus. ( 32 ) ALTHOUGH no return has been used for any of the parties we feel that this application can be disposed of in the absence of the same in view of the nature of the order proposed to be passed keeping in mind the issue that is involved in this application. ( 33 ) AS we have found that earlier a writ application was taken out on behalf of the petitioner and her elder son claiming the relief indicated hereinabove, which in our view, was the most the appropriate relief contemplated. The said writ application was at the stage when chargesheet was not submitted but it appears that pursuant to our repeated queries with regard to the stage of the investigation we find that on 10. 5. 04 already chargesheet has been submitted in the manner as observed by us earlier. The said writ application was at the stage when chargesheet was not submitted but it appears that pursuant to our repeated queries with regard to the stage of the investigation we find that on 10. 5. 04 already chargesheet has been submitted in the manner as observed by us earlier. A perusal of the chargesheet discloses sufficient materials against the said respondents and their active role in the crime. This is a very unfortunate case where a minor girl has gone missing since 2003 and yet remains untraced and chargesheet seems to have been filed after we look up the hearing of this application and constantly we put queries to the State, it is during pendency of this application the chargesheet has been submitted and it is only now appropriate that since the same discloses serious incriminating materials they should face the trial. Obviously the situation undergoes a substantial change. ( 34 ) ENTIRE scope of the writ application has been diluted in terms of the changed situation and the prayer has to be understood in the impact of the same. Since the investigating agency has already, on the basis of collection of materials made by them, formed an opinion and has submitted a report in final form sending up respondent Nos. 8, 9, 10, 12 and 13 for trial while absolving the respondent Nos. 11, 14 and 15 this Court feels that on the first instance no useful purpose would be served it the case is transferred to the respondent No. 16 at this stage and at the second instance it would be now at the stage of the trial in terms of the chargesheet submitted against the respondents noted hereinabove. ( 35 ) WE feel, without being least oblivious of the plight of the petitioner, that if the writ application is disposed of in the following terms it would perhaps be an appropriate order at the present moment and the agony of the petitioner although may not be obliterated but yet by mollified to a certain extent :a) Since a final report has been submitted in respect of the respondent nos. 11, 14 and 15 and it is the submission of the learned counsel for the petitioner that he has not been informed it would be the first step of the learned Magistrate to issue notice to the petitioner in terms of sub-section (8) of section 173 of the Code of Criminal Procedure in view of the decision of Bhagwant Singh vs. Commissioner of Police and Anr. , air 1985 SC 1285 . b) In the event the writ petitioner chooses to use a Naraji petition the learned Magistrate would take steps as known to law and would refuse to accept the report in final form submitted by the investigating agency in favour of the respondent Nos. 11, 14 and 15 and proceed further in accordance with the provisions of the Code of Criminal Procedure as in a case where Magistrate has refused to accept the final report. c) We are told that proclamation and attachment has already been issued by the learned Magistrate. He will keep the pressure on so as to secure the presence of the absconding accused (Respondent No. 7) with utmost despatch. d) Learned Magistrate would keep the date of execution of return after every fortnight and not beyond that and maintain close vigil over the progress of the process for securing the attendance of the absconding accused and take steps to exhaust all process as known to law in that direction (sections 82, 83, 84, Cr. PC onwards ). e) Learned Magistrate will forthwith spill up the case against the absconding accused respondent No. 7 and commit the case to the Court of Sessions within a fortnight from the date of communication of this order without fail and filing the case against the respondent No. 7 for the present yet keeping alive the process to secure the attendance of the respondent No. 7. f) After the commitment within the period, indicated above, on compliance with the provisions of section 207, Cr. PC, the learned magistrate will, as directed above, continue with the steps known for apprehending the absconding accused (respondent No. 7) and as soon as he is brought before the Court he would be arrayed in the list of the other accused persons who would be facing the trial in terms of the paragraph 36 of the decision of State of T. N. vs. J. Jayalalitha, 2000 (5) SCC 440 . g) It is further clarified that in the event a Naraji is used and the learned magistrate proceeds in that direction he would also expedite the said process keeping in mind the date fixed for commitment passed by this court. h) Learned Magistrate while committing the case to the Court of Sessions would be free to keep in mind the provisions of clause (b) of section 209, Cr. PC if he feels advisable to exercise his jurisdiction in terms of the said provisions as one of the accused is absconding he will be absolutely advised to do so. i) Thereafter upon commitment to the Court of Sessions the learned sessions Judge would proceed with the trial with almost dispatch and after the absconding accused is brought before the process of law he will be deemed to be included into the array of the existing accused. j) The respondent No. 1 is specifically directed to give wide publicity with regard to the missing of the minor girl Kumari Kanan Roy by way of publishing her photographs in the local Bengali Newspapers as well as in the English Dailies having sufficient circulation in the place and also the respondent No. 2 to regularly flash the picture of the missing girl Kumari Kanan Roy in the Television Channel where the list of missing persons are shown regularly, without fail; apart from maintaining utmost care over the process of securing the attendance of the absconding accused (respondent No. 7 ). k) Respondent No. 3 will also issue an order about the missing girl and paste her photographs and also the respondent No. 7 in all prominent places. ( 36 ) WITH these directions we dispose of this application with a fond hope that some day somewhere the little girl Kumari Kanan Roy would be restored to the caressing arms of the unfortunate mother (petitioner ). ( 37 ) NO order as to costs. ( 38 ) REGISTRY is directed to send down this Order through Fax to the learned sessions Judge, Barasat and the learned Sub-divisional Judicial Magistrate, bongaon including the respondent Nos. 1 and 2 by name for their strict compliance. Writ petition disposed of with directions.