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2024 DIGILAW 1537 (GUJ)

Ashaben Kishorbhai Solanki v. State Of Gujarat

2024-07-09

CHEEKATI MANAVENDRANATH ROY, UMESH A.TRIVEDI

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ORAL ORDER (PER : HONOURABLE MR. JUSTICE UMESH A. TRIVEDI) 1. This petition under Article 226 of the Constitution of India is filed praying for a Writ of Habeas Corpus directing respondent police authorities to produce the corpus i.e. husband of the petitioner who is missing since last about 7 months according to the petitioner. 2. While praying for a Writ of Habeas Corpus, a copy of application addressed to the Superintendent of Police, Kachchh at Bhuj dated 03.01.2024 from Bhavnagar by the petitioner wife stating that on 07.07.2023 her husband went missing from gate of Mundra Port. It is further asserted that despite Mundra Police being informed and telephoned repeatedly, they have not inquired into it. She has raised suspicion that they have not inquired whether he is alive or dead. She has complained about Mundra Police not providing any assistance to her. 3. When petition came up for hearing, we asked Mr. Das, learned advocate for the petitioner whether in absence of any assertion, either in her application made to the police or in the petition with regard to any illegal confinement of her husband by anyone, can this Court entertain a petition seeking a Writ of Habeas Corpus or not. Pursuant thereto, learned advocate for the petitioner submitted that in every case of missing person, a petition seeking a Writ of Habeas Corpus can be entertained. For the purpose, he has relied on a decision of the Supreme Court in the case of Devu G. Nair v. State of Kerala, rendered in Criminal Appeal No. 1730 of 2024 decided on 11.03.2024, more particularly, paragraph 16 thereof, wherein, guidelines for Courts in dealing with petitions for Habeas Corpus or petitions for police protection are formulated. Picking up word “missing person” from direction (d) contained in the said guidelines, it is submitted that even in case of a missing person, this Court has to entertain a petition for a Writ of Habeas Corpus. Reading paragraph 17 of the said decision, it is submitted that the guidelines must be followed in letter and spirit as a mandatory minimum measure to secure the fundamental rights and dignity of intimate partners and members of the LGBTQ+ communities in illegal detention. Based on it, it is submitted that it is the fundamental right of the person missing that he cannot be illegally confined and free to move wherever he/she wants. Based on it, it is submitted that it is the fundamental right of the person missing that he cannot be illegally confined and free to move wherever he/she wants. 3.1 Relying on another decision in the case of Alsia Pardhi v. State of MP and Others, reported in AIR 2014 SC 877 , more particularly, paragraph 3(h) and (i), it is submitted that despite the case before the High Court being of a missing person, High Court by order in that case entrusted investigation to the CBI and appeal came to be allowed. Again, referring specific word, “missing person”, it is submitted that this petition praying for a Writ of Habeas Corpus for a missing husband of the petitioner, in absence of any assertion in the petition itself, or even in argument that in whose illegal confinement he is, praying to issue a Writ of Habeas Corpus. 3.2 Another decision relied on is in the case of Shafin Jahan v. Asokan K. M. and Others, reported in AIR 2018 SC 1933 , more particularly, paragraph 5 thereof, it is submitted that corpus therein, despite promised to be brought to the house of a common friend, but it never happened and later, father of the corpus was informed that corpus escaped from the house of Aboobacker and had run away somewhere. Reading that, it is submitted that it was also a case of “missing person” wherein, Writ of Habeas Corpus is entertained. 3.3 Relying on all these decisions, it is submitted that respondents be called upon to find out major missing husband of the petitioner. 4. Considering the papers annexed with the petition, it appears that brother of missing husband of the petitioner has already got registered a missing complaint on 16.07.2023 alleging therein that on 04.07.2023, his brother along with two other persons in a truck went to deliver some goods at Adani Port, Mundra and on and from 07.07.2023, he went missing. It is asserted in the said missing report that his missing brother did not have Pass of Mundra Port and therefore, he waited outside Port premises. However, other two colleagues went inside the house for unloading the goods and when they came back, they did not find missing brother of the declarant. The said missing report is already given to Mundra Police Station by the brother of missing person on 16.07.2023. However, other two colleagues went inside the house for unloading the goods and when they came back, they did not find missing brother of the declarant. The said missing report is already given to Mundra Police Station by the brother of missing person on 16.07.2023. 4.1 It further appears from the papers annexed with the petition that the petitioner, under the Right to Information Act (RTI Act), called for certain information in respect of her missing husband for which missing complaint No. 23/2023 is registered. However, the authority informed that since inquiry into it is going on, it cannot be divulged. 4.1.1 Though, the said reply pursuant to an application under the RTI Act is proper or not, the petitioner is free to take appropriate action under the law. 4.2 However, for a missing adult person when there is proceedings registered before the police authority, the petitioner has all the remedies available under the law. Normally, no Writ of Habeas Corpus can be entertained, that too, in absence of any assertion, either made in the petition or produced by way of any contemporaneous record that missing person is illegally confined by someone, this Court cannot entertain a petition praying for a Writ of Habeas Corpus. 4.3 We have gone through entire petition as also documents annexed with it, we did not find a word that missing person is illegally confined, that too, by named or unnamed person. Though, Supreme Court in the case of Union of India v. Yumnam Anand M. @ Bocha @ Kora @ Suraj and Another, reported in (2007) 10 SCC 190 , held that Habeas Corpus is writ of right, but it is not a writ of course. Seeking a writ of Habeas Corpus, applicant must show a prima facie case of his/her unlawful detention. Though, aforesaid case is pertaining to preventive detention, there also even detention found to be illegal or unlawful, Writ of Habeas Corpus can be issued. 4.4 Since, in the present case, for a missing husband of the petitioner, there is not a word mentioned, either in the petition or in any contemporaneous record, that he is illegally confined by anyone or he is in illegal confinement of anyone, even if a petition seeking a Writ of Habeas Corpus is maintainable, it cannot be entertained. 4.4 Since, in the present case, for a missing husband of the petitioner, there is not a word mentioned, either in the petition or in any contemporaneous record, that he is illegally confined by anyone or he is in illegal confinement of anyone, even if a petition seeking a Writ of Habeas Corpus is maintainable, it cannot be entertained. Recognizing Article 21 of the Constitution of India in the aforesaid decision, paragraph 7 thereof states as under: “7. Article 21 of the Constitution having declared that no person shall be deprived of life and liberty except in accordance with the procedure established by law, a machinery was definitely needed to examine the question of illegal detention with utmost promptitude. The writ of habeas corpus is a device of this nature. Blackstone called it "the great and efficacious writ in all manner of illegal confinement". The writ has been described as a writ of right which is grantable ex dobito justitae. Though a writ of right, it is not a writ of course. The applicant must show a prima facie case of his unlawful detention. Once, however, he shows such a cause and the return is not good and sufficient, he is entitled to this writ as of right.” (underlined by us) 4.5 Reliance placed on the decision in the case of Alsia Pardhi (supra) is misplaced. It is a case of kidnapping by official of Forest Department of two women of tribal community from the market, the complaint for the same was not being investigated, a writ of Habeas Corpus came to be filed when there was a clear assertion about kidnapping and illegal confinement of the kidnapped tribal women and it was not a case of “missing person” simplicitor as attempted to be submitted by the learned advocate for the petitioner. Whatever may be the outcome of the said case, the precedent cited is of no help to the petitioner. In that case also Supreme Court has not laid down as precedent that in each and every case of missing person, a Writ of Habeas Corpus would be entertainable even if it is not disclosing any illegal confinement of the corpus by anyone. 4.6 Reliance placed on the decision of Shafin Jahan (supra) is also not of any help to the petitioner. 4.6 Reliance placed on the decision of Shafin Jahan (supra) is also not of any help to the petitioner. In that case, despite named person promised the father of missing major girl Hadiya to be brought to the house of a common friend and it did not happen informing father of the girl that she escaped from the house of that man and had ran away somewhere, therefore, a complaint has come to be filed which was not being investigated, a Writ of Habeas Corpus came to be filed alleging that she has been illegally confined and claimed to be missing thereafter from the custody of that man. In those facts of the case, the Supreme Court approved filing of Writ of Habeas Corpus but on major daughter Hadiya appearing before the Court declaring that she is not in any illegal confinement and she is staying in an educational institution on her own wish and will, proceedings for the same came to be closed. Though, in the aforesaid decision, second writ petition came to be filed but for different purpose, it need not be dealt with. Therefore also, aforesaid decision in the case of Shafin Jahan (supra) is of no help to the petitioner. 4.7 Decision in the case of Devu G. Nair (supra) of the Supreme Court, though laying down guidelines for the Court in dealing with Habeas Corpus petitions or petitions for police protection, but nowhere it is held that Writ of Habeas Corpus has to be entertained in each and every case of “missing persons”. Word “missing person” stated anywhere in any decision cannot be treated to be a precedent laid down by the Apex Court for the entertainability of a petition of Writ of Habeas Corpus in case of missing persons. 4.8 As such, petitioner may have several remedies under the law which are to be invoked, but not the remedy, that too, a Writ of Habeas Corpus in absence of any assertion anywhere in the entire petition who illegally confined her missing husband, it cannot be entertained. 4.9 For a major missing person, may be husband of the petitioner, may have several reasons for hiding himself. If any major person willingly hiding himself, it is very difficult to find him/her out by anyone. 4.9 For a major missing person, may be husband of the petitioner, may have several reasons for hiding himself. If any major person willingly hiding himself, it is very difficult to find him/her out by anyone. At any rate, in absence of even a slightest assertion with regard to illegal confinement of the missing husband of the petitioner, this Writ of Habeas Corpus cannot be entertained and petitioner is permitted to move any other appropriate proceeding in respect thereof, if she wants. 5. In view thereof, this petition is rejected.