Orissa High Court
Hemkumar Majhi vs State Of Odisha & Others .... Opposite ... on 30 September, 2021
Bench: S.K. Mishra, Savitri Ratho
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No. 124 of 2018
Hemkumar Majhi .... Petitioner
Mr. S.K. Joshi, Advocate
-versus-
State of Odisha & Others .... Opposite Parties
Mr. M.S. Sahoo, A.G.A.
CORAM:
JUSTICE S.K. MISHRA
JUSTICE SAVITRI RATHO
ORDER
30.09.2021 Order No.
22. 1. We have heard Mr. S.K. Joshi, learned counsel for the petitioner and Mr. M.S. Sahoo, learned Addl. Govt. Advocate through video conferencing mode earlier because of restrictions on account COVID-19 pandemic and again on hybrid mode on 27.09.2021 when matter was listed for "to be mentioned".
2. In this writ application, the petitioner- Hemkumar Majhi has prayed for the following reliefs:
"It is therefore prayed that this Hon'ble Court may graciously be pleased to admit the writ application and issue notice to the opposite parties and after hearing the parties direct the opposite party nos.2 and 3 to make production of the younger brother of Page 1 of 8 WPCRL No. 124 of 2018 the petitioner namely 'Indra Majhi' before this Hon'ble Court, who is in the illegal custody of the opposite party no.4".
3. In paragraph 9 of the writ application it has been stated as follows:
"9. That it is humbly submitted that the petitioner's brother has gone to Chennai by the Opposite Party No.4 along with another person and on query the petitioner came to know that his brother is neither in Chennai nor his where about is known either by opposite party no.4 or the person namely Joseph Pilley thereby the petitioner is suspecting that his brother has either been taken to somewhere else or sold at the hands of their master or he is no more."
4. The petitioner has further stated in the writ petition that his younger brother Indra Majhi was taken by the opposite party No.4-Jagdish Bhoi to Chennai along with another person namely Joseph Piley of Khariar Road, Ward No.9 to be engaged in good work. On 25.03.2018, Joseph Pilley asked the petitioner over phone whether his brother namely Indra Majhi has reached his house or not? And as he was not with him, the petitioner immediately asked Jagadish Bhoi, the Opposite Party No.4 but he could not say the whereabouts of his brother. On 25.03.2018 the petitioner with the assistance of his friend tried to find out the whereabouts of his Page 2 of 8 WPCRL No. 124 of 2018 brother but it is not known till date. On 04.04.2018 the petitioner intimated the said fact to the I.I.C., Jonk Police Station, the Opp. Party No.3 who did not register any case and only make Station Diary Entry i.e., Jonk SD No.400 of 2018 dated 04.04.2018 told the petitioner that he cannot do anything. So, the petitioner represented to the Superintendent of Police, Nuapada, Opp. Party No.2 on 12.04.2018 who on receipt of the same only issued the acknowledgment slip in favour of the petitioner. In the meantime, more than four months have elapsed. His brother is neither in Chennai nor his whereabouts is known either by Opposite Party No.4 or the person namely Joseph Pilley, thereby the petitioner is suspecting that his brother has been either taken somewhere else or sold at the hands of their master or he is no more. Neither the I.I.C. of Jonk Police Station nor the S.P., Nuapada are taking any steps to ascertain the whereabouts of the petitioner's brother nor any communication is made till date.
5. That vide order dated 09.04.2019, the Opp. Party No.3 I.I.C., Jonk Police Station had been directed to take appropriate steps to rescue the victim boy including raiding the house of Opp. Party No.4. When it became apparent that the Opp. Party No.3 had not taken any steps to trace/rescue the missing boy as directed by order dated 12.11.2020, the Opp. Party No.2 Superintendent of Police, Page 3 of 8 WPCRL No. 124 of 2018 Kalahandi and Opp. Party No.3, I.I.C., Jonk Police Station had been directed to remain present before this Court us through video conferencing on the next date. On 01.12.2020 when the matter was taken up, the S.P. Nuapada and I.I.C., Jonk Police Station, appeared before us through virtual mode and undertook to file a response within seven days. Thereafter separate affidavits have been filed by Opp. Parties No. 2 and 3 but with identical averments and documents.
6. The affidavits give a detailed account of the steps taken by them to trace the missing person "Indra Kumar Majhi". Apart from entering the information in the Station Diary Entry and Man Missing register on 04.04.2018, VHF messages have been sent to all IICs and OICs of Nuapada District and bordering P.Ss. and to Inspector District Crime Record Bureau, Nuapada and W.T. message to all S.Ps. of Odisha/DCP BBSR & Cuttack with information to S.P. CID, CB Odisha, Cuttack. The I.I.C. had gone to Chennai for the purpose of enquiry. At different times, different police officers have gone to Mahasamud District, Chhatisgarh as it is the neighbouring District, neighbouring Beltukuri P.S in Nuapada District, Khariar P.S in Nuapada District, Paikamala P.S. of Bargarh District, Arang P.S. in Mahasamud Distirct (State-Chhatisgarh), Bagbehera P.S. in Mahasamud District (State-Chhatisgarh), Paikamal P.S. in Bargarh Page 4 of 8 WPCRL No. 124 of 2018 District, Jharbandh P.S., Bargarh P.S., Junagarh P.S. in Bhawanipatna District. Rabi Pillai of Khariar Road has been contacted and examined to find out the whereabouts of Indra Majhi. Jonk P.S. Case No.51 of 2020 for offences under Sections 370, 420, 294, 506 I.P.C. has also been registered and Opp. Party No.4 Jagdish Bhoi arrested. He and Raj Pillai have been examined during investigation and they have stated that as per earlier information they and Indra Majhi were to be engaged in a cotton mill but when they found that they would be engaged in tube well digging work, they were reluctant and Jagdish Bhoi and Indra Majhi escaped from the car of the owner P.Pandian and ran in different directions and could not be located. Jagdish Bhoi came back home after some days but the whereabouts of Indra Majhi remained unknown. Chargesheet has been filed against Jagdish Boi on 20.08.2020 but investigation has been kept open. A S.I. had gone to Madurai District and examined P.Pandian. He also went to Otthakadai P.S. in Madurai District and to different marble and granite factories, textile, biscuit and chemical and rubber factories in Madurai District and to the State Crime Bureau, Chennai to trace the missing person.
7. After going through the affidavits and the documents, we are satisfied that adequate steps have been taken by the police to trace the missing person Indra Majhi and rescue him from the Page 5 of 8 WPCRL No. 124 of 2018 custody of Opp. Party No.4, but with no success as he is not in the custody of Opp. Party No.4 and his whereabouts still remain unknown for which the police have kept their investigation open.
8. It is also clear from certain averments in the writ petition and the averments in the affidavits of Opp. Parties No.2 and 3, that Indra Majhi brother of the petitioner is missing and that there is no question of his illegal detention by anybody.The petitioner has mentioned in his report dated 04.04.2018 submitted to the IIC Jonk Police Station which is part of Annexure A/3 to the affidavit dated 03.08.2019 of the I.I.C Jonk Police Station that his brother is aged 28 years .
9. That it has been decided in a catena of decisions of the Hon'ble Apex Court, this Court and various other High Courts that in cases where the victim/person is missing and has not been illegally detained by anybody, a writ application for issue of a writ of habeas corpus is not maintainable.
9. This Court in the case of Chaitanya Madhi Vrs. State of Orissa reported in 2020 ( I) ILR CUT 93 has held as follows :
"..7. The Hon‟ble Apex Court in the case of Kanu Sanyal Vrs. District Magistrate Darjeeling and others reported in (1973) 2 SCC 674 (Constitution Bench) have enunciated the principle concerning the Page 6 of 8 WPCRL No. 124 of 2018 nature and scope of a writ of habeas corpus as follows:-
"17. The writ of habeas corpus is essentially a procedural writ. It deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. The writ is, no doubt, a command addressed to a person who is alleged to have another person unlawfully in his custody requiring him to bring the body of such person before the Court, but the production of the body of the person detained is directed in order that the circumstances of his detention may be inquired into, or to put it differently, "in the order that appropriate judgment be rendered on judicial enquiry into the alleged unlawful restrain". But the writ is primarily designed to give a person restrained of his liberty a speedy and effective remedy for having the legality of his detention enquired into and determined and if the detention is found to be unlawful, having himself discharged and freed from such restraint. The most characteristic element of the writ is its peremptoriness. The essential and leading theory of the whole procedure is the immediate determination of the right to the applicant's freedom and his release, if the detention is found to be unlawful. That is the primary purpose of the writ, that is its substance and end. The production of the body of the person alleged to be wrongfully detained is ancillary to this main purpose of the writ. It is merely a means for achieving the end which is to secure the liberty of the subject illegally detained."
8. Illegal confinement is the precondition to issue writ of habeas corpus. Though a writ of right, it is not Page 7 of 8 WPCRL No. 124 of 2018 a writ of course. This extraordinary remedy is not available against a missing person who is not disable by minority. The missing person might have exercised his volition to stay away and such volition is not violation of Article 21 of the Constitution."...
10. As we are convinced that this is not a case of illegal detention and admittedly the missing person is not a minor, this writ application filed for issue of writ of habeas corpus is not maintainable and is accordingly dismissed.
11. Dismissal of this writ application will however not affect the investigation by the police, who shall proceed with the investigation in accordance with law and intimate the result of the investigation to the petitioner who is the informant in the case.
12. Urgent certified copy of the order be granted on proper application.
(Savitri Ratho) Judge I agree (S.K. Mishra) Judge Sukanta Page 8 of 8 WPCRL No. 124 of 2018