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Madhya Pradesh High Court · body

2018 DIGILAW 919 (MP)

Bhagwan Das Kori v. State of M. P.

2018-10-29

SHEEL NAGU

body2018
ORDER 1. In this writ petition, the petitioner who happens to be husband has sought a writ of habeas corpus to the respondents to trace out his missing wife Smt. Leelabai @ Seeta aged 37 years and daughter Ku. Gauri aged 10 years vide Annexure-P-1 (Family Card) and to produce them before this Court. 2. According to the complaint, the petitioner's wife alongwith her two children had gone to Gwalior railway station on 20.5.2016 from where his daughter namely Gauri did not come back and was reportedly kidnapped by someone else in regard to which FIR bearing Crime No. 127/16 for offence punishable under section 366 IPC was lodged on 24.5.2016 by Broad Gauge Police Station (GRP) Gwalior and the investigation is being carried out by the police authorities of Railways GRP. 2.1 As regards petitioner's wife Smt. Leelabai @ Seeta it is stated that complaint regarding wife of petitioner being missing was lodged by respondent No. 8-Tanvi Pathak on 25.9.2016 at Noida in which the complainant-respondent No. 8 stated that she hired Leelabai from home town for domestic help where she worked from 9.7.2016 to 16.7.2016. The complaint further disclosed that on 16.7.2016 the wife of petitioner did not attend her duty and on 17.7.2017 she left Noida for Gwalior from where she is alleged to be missing. 3. After notice was issued in this petition on 22.12.2016, the State was directed to submit status report and produce the missing corpus of the petitioner if possible. Thereafter case was listed for several times and perusal of the record indicates that despite making all out efforts by the police including registration of FIR vide Crime No. 127/16 for offence punishable under section 363 IPC in case of daughter of the petitioner and recording of statements of witnesses including the petitioner, the corpus are not being traced out. It is further disclosed in the status report filed by State dated 15.5.2018 that the wife of the petitioner is missing from Noida and the police authorities have tried to search the corpus at Noida itself but to no avail. The status report further disclosed that as per the order of the S.P., Gwalior dated 7.7.2018 Special Investigation Team of 7 members has been constituted to search the missing corpus and all sincere efforts are being made to trace out the corpus. 4. The status report further disclosed that as per the order of the S.P., Gwalior dated 7.7.2018 Special Investigation Team of 7 members has been constituted to search the missing corpus and all sincere efforts are being made to trace out the corpus. 4. It is evident from perusal of the averments that present is not a case of wrongful confinement/detention and therefore a writ of habeas corpus cannot be issued to remedy the cause of missing person, more so when no one is found to be responsible for the alleged corpus being missing. 5. The Division Bench of this Court rendered in the case of Sulochana Bai v. State of M.P. and others, reported in 2008 (1) MPLJ 339 , held that a petition seeking writ of habeas corpus is not maintainable in respect of a missing person's case. Relevant paras of the said judgment are reproduced below : “4. The writ of habeas corpus as had been called by Blackstone "the great and efficacious writ in all manner of illegal confinement". The apex Court in the case of Kanu Sanyal v. District Magistrate, traced the immemorial antiquity of the writ and referred to number of English decisions and opined that there can be no doubt that in enacting Article 32 (2) the Constitution makers meant to give to person illegally restrained of his liberty the same kind of remedy, fashioned and developed over the years, which his counterpart enjoyed in England and United States. Their Lordships further proceeded to state that while dealing with an application for the writ of habeas corpus under Article 32 the Supreme Court may not require the body of the person detained to be brought before the Court. The production of the body of the person detained is not essential to the jurisdiction of the Supreme Court to deal with the application. Their Lordships expressed if the detention is found to be unlawful, an order to release him is to be passed forthwith. 5. In Prem Shanker Shukla v. Delhi Administration, the apex Court has ruled thus : “The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention. 5. In Prem Shanker Shukla v. Delhi Administration, the apex Court has ruled thus : “The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention. No longer is this liberating writ trammelled by the traditional limits of English vintage; for, our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction. That is why, in India, as in the similar jurisdiction in America, the broader horÁons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity of defiles his personhood to a degree that violates Articles 21, 14 and 19 enlivened by the preamble.” 6. In Additional Secretary to the Government of India v. Alka Subhash Gadia [1992 Suppl. (1) SCC 496], it has been held that the Courts must insist that the aggrieved person must allow the due operation and implementation of the concerned law and exhaust the remedy provided by it before approaching the High Court to invoke the discretionary, extraordinary and equitable jurisdiction which has to be very sparingly used. Their Lordships laid down certain guidelines where the Court should interfere prior to execution of order of detention. 7. In Sayed Taher Bqwamiya v. Joint Secretary to the Government of India and ors., the said principle was reiterated. 8. In Mohd. Ikrarn Hussain v. State of U.P., it has been held as under : “Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of Habeas Corpus is probably never used by a husband to regain his wife and the alternative remedy under section 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact that first to be established. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact that first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercise in a clear case. 9. In this context a Division Bench of the Kerala High Court in T. Ramachandran v. V.K. Kuttan and ors. [1975 Cr.LJ 1531], it has been held that the issue of writ of habeas corpus would necessarily pre-supposes the factum of wrongful confinement. 10. In the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, the apex Court while dealing with the custody of a minor child in habeas corpus petition expressed the opinion as under: “3. It is difficult for us in this habeas corpus petition to take evidence without which the question as to that is in the interest of the child cannot be satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh.” 11. In the case of State of Bihar v. Kameshwar Prasad Verma, it has been held that habeas corpus is a writ in the nature of order calling upon the person who was detained by another to produce the latter before the Court so that the Court can know on what ground he has been confined and set him free if there is no legal jurisdiction for imprisonment. In Anwar v. State of J and K, it has been held that it must appear to the Court that the detention is in violation of the procedure established by law. 12. In Anwar v. State of J and K, it has been held that it must appear to the Court that the detention is in violation of the procedure established by law. 12. We have referred to the aforesaid decisions only to highlight that the writ of habeas corpus can only be issued when there is assertion of wrongful confinement. In the present case, what has been asserted in the writ petition is that her father-in-law has been missing for last four years and a missing report has been lodged at the Police Station. What action should have been taken by the Police that cannot be the matter of habeas corpus because there is no allegation whatsoever that there has been wrongful confinement by the police or any private person. In the result, the writ petition is not maintainable and is accordingly dismissed.” 6. In view of above, since the cause raised is only of missing person but not of unlawful confinement or restraint, no writ of habeas corpus can be issued and thus this petition seeking a writ of habeas corpus is not maintainable. 7. Accordingly, the present petition stands disposed of with following directions : (1) That, the respondents are directed to take all possible steps to search the missing corpus, i.e., wife and daughter of the petitioner. (2) The S.P., Gwalior is directed to supervise the process of search and file a monthly progress report of steps taken before the Registry of this Court. (3) The Registry is further directed to list this matter for orders before appropriate bench in case any of the monthly reports filed by the S.P., Gwalior are found wanting in aspect of compliance. 8. With the above observations and directions, the present petition is disposed of.