Madhya Pradesh High Court
Simmi Bai vs Shrimaan Police Mahanirikshak ... on 28 January, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV SACHDEVA
&
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 28th OF JANUARY, 2025
WRIT PETITION No. 16475 of 2023
SIMMI BAI
Versus
SHRIMAAN POLICE MAHANIRIKSHAK MAHODAYA AND OTHERS
Appearance:
Shri N.P.Rathore - Advocate for petitioner.
Dr. Siddharth Singh Chouhan - Government Advocate for respondents/State.
ORDER
Per: Justice Vinay Saraf
1. Shri Samar Verma, Additional Superintendent of Police (ASP),
Jabalpur (M.P.) and Shri Sunil Nema, City Superintendent of Police (CSP),
Section - Bargi, Jabalpur are personally present in the Court.
2. An application for exemption is made for the personal presence of the
Superintendent of Police on the ground that an incident had taken place on
account of which he is engaged in urgent official duties. It is stated that the
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status report that is being filed today has been vetted by the Superintendent
of the Police and the entire efforts have been personally supervised by him.
3. The statement is taken on record.
4. In view thereof, the personal presence of Superintendent of Police,
Jabalpur is dispensed with.
5. This petition has been preferred by mother of the corpus on the
ground that the corpus is missing from Pune, Maharashtra.
Maharashtra. Petitioner has
lodged missing person report at Police Thana - Shahpura, Distt. Jabalpur on
05.04.2023 that her daughter along with two children are missing and they
have been wrongfully confined by Dileep Choudhary and Kavita Choudhary
of village Kantora Tehsil - Patan Distt. Jabalpur. Upon the same missing
person report, police started investigation. Being dissatisfied with the
investigation, present writ petition (Habeas Corpus) has been preferred by
the petitionerr under Article 226 of the Constitution of India seeking direction
to the Police Authorities to search the daughter of the petitioner and her
children and produce them before the Court.
6. This Court vide order dated 25.07.2023 issued notices to the official
respondents and called for the status report.
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7. First status report was submitted on 09.08.2023, wherein Police
Officers informed the Court that after registration of missing person report,
intensive steps were taken to search the corpus and her minor child
children aged
about 11 years and 8 years, but could not be traced out. Investigation teams
had searched the corpus in Odisha, Karnatika, Chhatisgarh and Jabalpur.
8. Direction was issued to intensify the efforts, thereafter the case was
fixed on several times. On 17.01.2024 third status report was filed on behalf
of the respondent wherein, it is stated that the corpus along with her minor
children visited the place of her parents on 03.12.2023. Panchnama was also
prepared to that effect, wherein they specifically stated
tated that corpus along
with her children visited at village Raiyakheda on 03.12.2023, where the
petitioner resides. Time to time directions were issued in this matter to trace
out the corpus and children.
9. On the last date of hearing, considering the fact that petition is
pending since 25.07.2023, a direction was issued to Superintendent of
Police, Jabalpur to take over the investigation personally and produce the
corpus on the next date of hearing. In compliance of the aforesaid order
Superintendent of Police,
Police, Jabalpur had taken the investigation in his hands
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and intensified the efforts for searching the corpus and her children. During
the course of investigation they recorded the statement of the petitioner and
other family members wherein, they stated that
that on 03.12.2023, the corpus
visited village Raiyakheda on her
h own will along with her children.
Documents have been placed along with status report on record.
10. On 17.01.2025, the Investigating Officer recorded the statement of the
petitioner Simmi Bai who stated
stated that the corpus along with her children
came to her maternal village Raiyakheda on 03.12.2023 at 11:30 am with a
boy on motorcycle and met to her neice - Roshni Choudhary intimating her
that she was going to village Karmeta and will stay there till eevening and if
they want to meet her they may come there. The Investigating Officer
recorded the statement of Roshni Choudhary who also stated on 17.01.2025
that at 10:00 am on 03.12.2023 corpus Sheela visited at her maternal house
along with her children Kartik and Keerti with a boy and asked her to call all
the family members. She further stated that as the family members were not
present at home the corpus intimated her that she was going to village
Karmeta and they may come there to meet her. Similar statement
statement was given
by Arjun Singh Choudhary, brother of the corpus and sister
sister-in-law Smt.
Reshma Choudhary w/o Arjun Singh Choudhary. When Police Officers
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received the information regarding the corpus on the same date on
03.12.2023 at 17:30 they visited at village Karmeta and searched the corpus
there and prepared a memorandum (panchnama) wherein this fact was
verified by the villagers that the corpus visited there and had gone on
motorcycle with a boy along with children as per her own wish. Police has
prepared
ared a memorandum at 16:00 on 03.12.2023 in village-
village Raiyakheda also
from the Status report submitted by the Investigating Officer today, it
appears that the corpus had
ha gone on her own wish.
11. It is apparent that the corpus is not in any wrongful confinement and
she has gone on her own along with minor children. The present petition is
preferred as habeas corpus and this petition is maintainable only in case, the
corpus is wrongfully confined by any authority or private persons. Writ of
Habeas Corpus is an effective
effective means of immediate release from an unlawful
detention. Physical confinement is not necessary to constitute detention,
however control or custody are sufficient for issuance of writ of Habeas
Corpus. Petitioner
etitioner must show a prima facie case of unlawful
unlawful detention of the
corpus. Constitution Bench of the Hon'ble Supreme Court considered the
scope of writ of habeas corpus in the matter of Kanu Sanyal V. District
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Magistrate, Darjeeling and others, (1973) 2 SCC 674 has held in
paragraph 4 as under:-
under:
4......
.. the writ of habeas corpus that it 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,
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
ances of his detention may be inquired into, or to put it
differently, "in order that appropriate judgment be rendered on judicial
enquiry into the alleged unlawful restraint". The form of the writ
employed is "We command you that you have in the King's Be Bench
Division of our High Court of Justice -- immediately after the receipt of
this our writ, the body of A.B. being taken and detained under your
custody -- together with the day and cause of his being taken and
detained -- to undergo and receive all and singularsingular such matters and
things as our court shall then and there consider of concerning him in
this behalf". The italicized words show that 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 and, as pointed out by Lord
Halsbury,
sbury, L.C., in Cox v. Hakes "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; 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...................
de
12. In the matter of Union of India v. Yumnam Anand M. alias Bocha
alias Kora alias Suraj and another, (2007) 10 SCC 190 Supreme Court
while explaining the nature of writ of habeas corpus has held that the
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petitioner must show a prima facie case of unlawful detention. Paragraph 7
of the judgment reads as under:-
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 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
scribed 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.
13. A writ of habeas corpus is not maintainable in respect of person who
is simply missing and not in unlawful detention. Unalwful detention is the
sine qua non for issuance of writ of habeas corpus. The Apex
Apex Court in the
matter of Home Secretary (Prison) and others v. H. Nilofer Nisha,
(2020) 40 SCC 161 has considered the scope of the habeas corpus petition.
The relevant paras are reads as under:-
under:
11. We feel that a quietus has to be given to this matter and the legal
issue must be decided. As far as the objection of selective filing of
petitions by the State against orders of release by the High Court is
concerned, that objection is meaningless. We are not aware of the
other orders and, in any event,
even there can be no claim of negative
discrimination under Article 14 of the Constitution of India.
12. Article 226 of the Constitution of India empowers the High
Courts to issue certain writs including writs in the nature of
habeas corpus, mandamus, prohibition,
proh quo warranto and
certiorari for the enforcement of any right conferred under Part III
of the Constitution dealing with the fundamental rights. In this
case, we are concerned with the scope and ambit of the jurisdiction
of the High Court while dealing
deal with the writ of habeas corpus.
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13. It is a settled principle of law that a writ of habeas corpus is
available as a remedy in all cases where a person is deprived of
his/her personal liberty. It is processual writ to secure liberty of
the citizen from unlawful or unjustified detention whether a person
is detained by the State or is in private detention. As Hidayatullah,
J. (as he then was) held: (SCC p. 1630, para 12)
"12. ... The writ of habeas corpus issues not only for
release from detention by the
t State but also for release from
private detention"[Mohd. Ikram Hussain v. State of U.P.,
AIR 1964 SC 1625 : (1964) 2 Cri LJ590] .At the same time,
the law is well established that a writ of habeas corpus will
not lie and such a prayer should be rejected by the Court
where detention or imprisonment of the person whose
release is sought is in accordance with the decision rendered
by a court of law or by an authority in accordance with law.
14. According to Dicey, "if, in short, any man, woman, or child is,
is
or is asserted on apparently good grounds to be, deprived of
liberty, the Court will always issue a writ of habeas corpus to
anyone who has the aggrieved person in his custody to have such
person brought before the Court, and if he is suffering restraint
without lawful cause, set him free." [ A.V. Dicey,Introduction to
the Study of the Law of the Constitution, Macmillan and Co. Ltd.,
p. 215 (1915).]
15. In Halsbury's Laws of England, a writ of habeas corpus is
described as "a remedy available to the lowliest
lowl subject against
the most powerful"[Halsbury's Laws of England (4th Edn.), Vol.
11, para 1454, p. 769.] . Itis a writ of such a sovereign and
transcendent authority that no privilege of person or place can
stand against it [V.G. Ramachandran's Law of Writs,
W revised by
Justice C.K. Thakker & M.C. Thakker, EasternBook Company, p.
1036, 6th Edn. (2006).] .
16. A writ of habeas corpus can only be issued when the detention
or confinement of a person is without the authority of law. Though
the literal meaning
meani of the Latin phrase habeas corpus is "to
produce the body", over a period of time production of the body is
more often than not insisted upon but legally it is to be decided
whether the body is under illegal detention or not. Habeas corpus
is often used as a remedy in cases of preventive detention because
in such cases the validity of the order detaining the detenu is not
subject to challenge in any other court and it is only writ
jurisdiction which is available to the aggrieved party. The scope of
the petition
etition of habeas corpus has over a period of time been
expanded and this writ is commonly used when a spouse claims
that his/her spouse has been illegally detained by the parents. This
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writ is many times used even in cases of custody of children.
Eventhough,
gh, the scope may have expanded, there are certain
limitations to this writ and the most basic of such limitation is that
the Court, before issuing any writ of habeas corpus must come to
the conclusion that the detenu is under detention without any
authority
ty of law.
14. Division Bench of this Court in the matter of Sulochana Bai v. State
of M.P., (2008) 1 MPLJ 339 considered the scope of habeas corpus in a
matter of missing report lodged with the police in respect of corpus. The
Division Bench has held as under:-
13. 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
father 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 beenbe wrongful confinement by the police
or any private person.
15. Division Bench of Orissa High Court in the matter of Nimananda
Biswal vs. State of Odisha and others, (2023) SCC Online Ori 5628 has
considered the issue of issuance of writ of habeas corpus in respect of a
missing person and has held as under:-
under:
10. Writ of habeas corpus cannot be issued in a casual and
routine manner. Though it is a writ of right, it is not a writ of
course. Thehe writ of habeas corpus is festinum remedium and
power can be exercised in clear case. Illegal confinement is a
pre-condition
condition to issue a writ of habeas corpus. It cannot be issued
in respect of any and every 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. On the basis of a habeas corpus petition, the
power under Article 226 of the Constitution of India is not to be
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exercised for tracing a missing person engaging an investigating
agency empowered to investigate a case under Cr. P.C.
16. Cases of missing persons cannot be brought under the provision of the
Habeas Corpus petition. Cases of missing persons are to be registered under
the regular provisions of the Indian Penal Code and the Police officials
concerned are bound to investigate the same in the manner prescribed under
the Code of Criminal Procedure. Such cases are to be dealt as regular cases
by the competent Court of law and the
the extraordinary jurisdiction of the
Constitutional Courts cannot be invoked for the purpose of dealing with such
cases of missing persons. Thus, the constitutional Courts across the country
predominantly held in catena of judgments that establishing a gro
ground of
"illegal detention" and a strong suspicion about any such "illegal detention"
is a condition precedent for moving a habeas corpus petition and the
constitutional Courts shall not entertain a habeas corpus petition, where there
is no allegation of "illegal
"illegal detention" or suspicion about any such "illegal
detention".
17. Coming to the case in hand the petitioner fails to establish a prima
facie case of unlawful detention of her daughter and two minor children by
any particular person, rather it is revealed from the status report that the
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corpus along with her minor children has gone to unknown place as per her
own wish and she is not in any wrongful confinement. Therefore, we are of
the considered view that a petition seeking the issuance of writ of habeas
corpus
orpus cannot be entertained to trace out the missing person and for such
purpose the petitioner can pursue other effective remedy.
18. From the materials submitted with the status report, it appears that the
corpus is not in any wrongful confinement and, therefore,
therefore, we disposed of
this petition with a direction to the respondents to continue the search of the
corpus and her minor children in accordance with law in furtherance of
missing person report lodged by petitioner.
19. With the aforesaid, present petition is disposed of.
(SANJEEV SACHDEVA) (VINAY SARAF)
JUDGE JUDGE
VPA
VAISHALI TRIPATHI
2025.02.04 15:15:39
+05'30'
