Petition Seeking Issuance Of Writ Of Habeas Corpus Cannot Be Entertained To Trace Out Missing Person, Petitioner Can Pursue Other Effective Remedy: Orissa High Court

The Orissa High Court has held that illegal confinement is a pre-condition to issuing a writ of habeas corpus, and it cannot be issued in respect of tracing out a 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.

The High Court held so while considering a petition, whereby the counsel for the petitioner submitted that the daughter of the petitioner was untraceable for long, for which the petitioner had lodged a first information report since Oct 2022 at the Bidanasi Police Station, Cuttack. It was alleged that though almost a year had elapsed since the filing of the FIR, the Opposite Parties were not taking any efficacious steps to trace out the daughter of the petitioner.

The Division Bench of Justice S.K Sahoo and Justice Sibo Sankar Mishra observed that “In this case, the petitioner has not established a prima facie case of unlawful detention of his daughter by any particular person, rather it is submitted on his behalf that his daughter has been missing. Therefore, we are of the considered view that a petition seeking the issuance of the writ of habeas corpus cannot be entertained to trace out a missing person and for such purpose, the petitioner can pursue other effective remedy”.

Advocate A.K. Pandey appeared for the Petitioner, whereas Advocate Saswata Pattanaik appeared for the Opposite Party.

After considering the submission, the Bench found that the present is a case of a missing person, and no material was produced to show that the daughter of the petitioner has been illegally detained by anyone.

The Court must be satisfied with the factum of illegal detention before it proceeds to entertain a petition seeking issuance of the writ of habeas corpus, added the Bench.

The Bench went on to observe that a writ of habeas corpus cannot be issued in a casual and routine manner and explained that though it is a writ of right, it is not a writ of course.

The High Court therefore concluded that a writ of habeas corpus is ‘festinum remedium’ and power can be exercised in clear case, and based on a habeas corpus petition, the power under Article 226 of the Constitution of India is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under CrPC.

Accordingly, the Court disposed of the Writ Petition.

Cause Title: Nimananda Biswal v. State of Odisha and Ors.

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