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2014 DIGILAW 410 (KAR)

Sudharani v. State of Karnataka through Home Secretary

2014-03-26

H.G.RAMESH, RATHNAKALA

body2014
ORDER : H.G. Ramesh, J. In this writ petition, the petitioner has sought for a writ of habeas corpus to the respondents to trace her missing husband (aged 45 years) and to produce him before this Court. It is stated that he is missing since August 1, 2013 and though complaint to the police was filed by the petitioner on August 7, 2013, the police have not traced him till date. 2. The police have filed a report by way of an affidavit dated 18.03.2014 stating the efforts made by them to trace the petitioner’s husband and that further efforts would be made to trace him. 3. Learned Additional State Public Prosecutor appearing for the respondents submits that, on the facts of the present case, no writ of habeas corpus could be issued to the respondents as it is not the petitioner’s case that her husband has been detained wrongfully by the police or any other person. In support of his submission, he relies on a judgment of this Court in S.K. Naik v. The Police Sub-Inspector, WPHC No. 194/2012 dated 19-10-2012 and also the judgment of the Calcutta High Court in Swapan Das v. The State of West Bengal, W.P. No. 17965/2013 (W) dated 28-06-2013. It is relevant to refer to the following observations made by this Court in S.K. Naik (supra) : “5. We find there is absolutely no occasion to issue a writ of habeas corpus, as the writ petitioners do not allege or aver in the petition that the police or any third party has held the missing person in illegal custody. 6. A writ of habeas corpus 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.” (Underlining & emphasis supplied) The following observations made by the Calcutta High Court in Swapan Das (supra) may also be noticed: “............ On the basis of a habeas corpus petition, the power under art. 226 is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under the Code of Criminal Procedure, 1973. The investigation, if in progress, is to be overseen by the criminal court. On the basis of a habeas corpus petition, the power under art. 226 is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under the Code of Criminal Procedure, 1973. The investigation, if in progress, is to be overseen by the criminal court. Here the petitioner is asking this court to direct the police to track down his missing son.” (Emphasis supplied) 4. Habeas Corpus is a writ calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been detained, and to set him free if there is no legal justification for the detention. ‘Habeas Corpus' literally means “have the body”. Writ of habeas corpus is also known as a ‘writ of liberty’. A writ of habeas corpus is issued for release of a person who has been detained unlawfully by the State or by any private individual. A writ of habeas corpus is not issued if the person concerned is not in unlawful detention. 5. In the present case, it is not the case of the petitioner that her husband has been illegally detained by the State or by any private individual. Accordingly, no writ of habeas corpus could be issued to the respondents. 6. The submission of the Learned Additional State Public Prosecutor that the police would make all efforts to trace the petitioner’s husband is placed on record. Petition dismissed.