Chattisgarh High Court
Smt. Sudha Singh vs State Of Chhattisgarh on 28 September, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
WPHC No. 18 of 2022
Smt. Sudha Singh W/o Shri Kamal Singh Aged About 50 Years R/o
Quarter No. 36/11, 6th Battalion, Residential Premises, Urdana, Raigarh
Police Station - City Kotwali, Tahsil And District Raigarh, Chhattisgarh.
---- Petitioner
Versus
1. State Of Chhattisgarh Through Its Secretary, Department Of Home/
Police, Mahanadi Bhawan, Mantralay, Police Station And Post -
Rakhi, Atal Nagar, Nawa Raipur, District : Raipur, Chhattisgarh
2. Director General Of Police (D.G.P.) Police Headquarters (Phq),
Sector - 19, Police Station And Post - Rakhi, Atal Nagar, Nawa
Raipur, District : Raipur, Chhattisgarh
3. Inspector General Of Police (Igp) Office Of Inspector General Of
Police (Igp), Surguja Range, Ambikapur, District : Surguja
(Ambikapur), Chhattisgarh
4. Deputy Inspector General Of Police (Digp) Chhattisgarh Armed Force
(Caf), Office Of Digp, North Range, Chandi Chowk, Ambikapur,
District : Surguja (Ambikapur), Chhattisgarh
5. Superintendent Of Police (S.P.) Office Of Superintendent Of Police
(Sp), Jashpur, District : Jashpur, Chhattisgarh
6. Commandant Office Of Commandant, 2nd Battalion, Chhattisgarh
Armed Force (Caf), Sakri, District : Bilaspur, Chhattisgarh
7. Company Commander Office Of Company Commander, Police
Station - Sanna, District : Jashpur, Chhattisgarh
8. Station House Officer, Police Staiton - Sanna, District : Jashpur,
Chhattisgarh
---- Respondents
(Cause Title taken from Case Information System)
For Petitioner : Mr. Abhishek Pandey and Mr. Ghanshyam Sharma,
Advocates.
For Respondents : Mr. H.S.Ahluwalia, Deputy Advocate General
Hon'ble Mr. Arup Kumar Goswami, Chief Justice
Hon'ble Mr. Deepak Kumar Tiwari, Judge
Order on Board
Per Arup Kumar Goswami, Chief Justice
28/09/2022
Heard Mr. Abhishek Pandey, learned counsel, appearing for the
petitioner. Also heard Mr. H.S.Ahluwalia, learned Deputy Advocate
General, appearing for the respondents.
2. In this petition, wherein, the petitioner seeks a writ of habeas corpus,
it is pleaded that the petitioner's son, namely, Aditya Singh, is a Constable.
While posted at Police Station, Sanna, District Jashpur, he went missing.
After three days, on a complaint of respondent No. 7, a missing person
report was registered on 22.06.2022.
3. The grievance expressed in this petition is that despite number of
letters issued, the respondent authorities have not produced the
petitioner's son before her.
4. There is no allegation in the writ petition that any of the respondents
or any other person or authority had illegally detained the petitioner's son.
5. In Kanu Sanyal v. District Magistrate, Darjeeling and others , reported
in (1973) 2 SCC 674, a Constitution Bench, at paragraph 4 had held as
under:
"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 enquired 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."
6. In Union of India v. Yumnam Anand M. alias Bocha alias Kora alias
Suraj and another, reported in (2007) 10 SCC 190, while explaining the
nature of writ of habeas corpus, Their Lordships of the Supreme Court held
that though it is a writ of right, it is not a writ of course and the applicant
must show a prima facie case of unlawful detention. Paragraph 7 of the
decision reads 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 debito justitiae. 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."
7. In absence of any pleading that the son of the petitioner is in
unlawful detention, we are not inclined to entertain this writ petition.
8. Accordingly, the same is dismissed. However, liberty is reserved to
the petitioner to pursue remedy in accordance with law.
Sd/- Sd/-
(Arup Kumar Goswami) (Deepak Kumar Tiwari)
CHIEF JUSTICE JUDGE
Amit
