Madhya Pradesh High Court
Sulochana Bai vs State Of M.P. And Ors. on 24 September, 2007
Equivalent citations: 2008(2)MPHT233
Author: Dipak Misra
Bench: Dipak Misra, S.C. Sinho
ORDER Dipak Misra, J.
1. The petitioner has preferred this writ petition for issue of a writ of habeas corpus directing the respondents to produce her father-in-law, Kanchhedi Lal.
2. Shorn of unnecessary details the requisite facts are that the petitioner is the daughter-in-law of the missing person, Kanchhedi Lal, who was working in Khamariya Factory. On 26-6-2003 said Kanchhedi Lal left his home for the place of work but thereafter he did not return and, therefore, an information in this regard was given at the Police Station, Ranjhi. On the aforesaid basis, a case being Case No. 50/03 was registered and investigation was commenced. But Kanchhedi Lal has not yet been traced out. Police Station, Ranjhi, vide letter dated 18-8-2004 (Annexure P-l) informed that the search in respect of said Kanchhedi Lal is in progress but so far no positive information has been received in that regard. It is pleaded that Pramod Burman, the husband of the petitioner, and son of the missing person, is suffering from mental disease. It is also putforth that notice in respect of aforesaid missing person was also published in the newspaper but no fruitful result has ensued. It is asserted that the petitioner is a poor labourer and is required to look after her mentally retarded husband and her children. Despite her visit to the Police Station and Khamariya Factory with great difficulties, nothing has been done in that regard. It is asseverated that the wife of the missing person and the mother-in-law of the petitioner has already died. It is urged that the investigating agency is not taking action and further not supplying any information on one pretext or the other.
3. Mr. Ashok Agrawal, learned Government Advocate has raised a preliminary objection that the writ of habeas corpus is not maintainable as there is no allegation that the father-in-law of the petitioner has been detained in any wrongful confinement by any one.
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. 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 horizons 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. 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. 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.