1 HIGH COURT OF MADHYA PRADESH, BENCH AT GWALIOR. WRIT PETITION No.5584 of 2011. Shivswaroop Dixit vs. State of Madhya Pradesh and others. *** ------------------------------------------------------------------------------------------------- DB : HON'BLE SHRI S.K.GANGELE & HON'BLE SHRI BRIJ KISHORE DUBE, JJ. _________________________________________________________________ Shri Praveen Mishra, Advocate, for petitioner. Shri M.P.S. Raghuvanshi, Additional Advocate General, for respondents/ State. ....................................................................................................... Whether approved for Reporting : ....................................................................................................... O R D E R (Passed on this 21st day of October, 2011) Per S.K. Gangele, J. - 1. Petitioner has filed this Habeas Corpus Petition for production of corpus his son Abhay Dixit. 2. It is alleged by the petitioner that on 12/2/2011 at about 5.30 morning his son has gone somewhere without any intimation. A report to this effect has been lodged by the petitioner at Police Station Bahodapur, Gwalior. It is stated that a letter has been written by the corpus to one Kanakeshwari Devi at Sadguru Asharam, Ashoknagar, Viramgram, Ahemadabad and his son also contacted with him at mobile and reported that he is at Ahemdabad, however, thereafter, the whereabouts of the corpus is not known. All these informations have been given to the police, however, no action has been taken by the Police for searching out his son Abhay even after a period of eight months. 3. The respondents/State have filed a progress report and it is 2 stated that a missing person report has been registered at Rojnamcha Sanha No.944 and recorded the statements of the petitioner on 22.2.2011. It is also stated that petitioner's son has went away along with two mobile sets and one ATM card. It is also stated that the petitioner has not levied any allegation against any private person to the effect that his son is in illegal detention. However, the police authorities are still searching the corpus and in continuation thereof the Station House Officer has issued a letter on 25/2/2011 to the District Crime Branch as well as C.I.D., copy of which has been filed as Annexure R/2. 4. Learned Counsel for petitioner has argued that it is obligatory on the part of police to produce son of petitioner before the Court. Contrary to this, learned Additional Advocate General has submitted that in habeas corpus petition it is the duty of petitioner to pin-point that whether the corpus is in detention or not and if it is found that the corpus is not in illegal detention or it is not possible to search out the corpus, then the habeas corpus petition is not maintainable. 5. The main question for consideration in this writ petition is that what steps could be taken by this Court to find out the corpus or what directions can be issued to respondents for production of the corpus ? 6. Hon'ble the Supreme Court in the case of Deepak Bajaj v. State of Maharashtra & another, reported in AIR 2009 SC 628, has held as under in regard to writ of habeas corpus :- “29. The celebrated writ of habeas corpus has been described as 'a great constitutional privilege of the citizen' or 'the first security of civil liberty'. The writ provides a prompt and effective remedy against illegal detention and its purpose is to safeguard the liberty of the citizen which is a precious right not to be lightly transgressed by anyone. The imperative necessity to protect those precious rights is a lesson taught by all history and all human experience. Our founding fathers have lived through bitter years of the freedom struggle and seen an alien Government trample upon the human rights of our citizens. It is for this reason that they introduced Article 21 in the Constitution and provided for the writs of habeas corpus, etc. 3 30. In R vs. Secretary of State for Home Affairs; ex parte O'Brien (1923) 2 KB 361 : 1923 AC 603 : 92 LJKB 797, Scrutton, LJ observed : "The law in the country has been very zealous of any infringement of personal liberty. This case is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all. You really believe in freedom of speech if you are willing to allow ft to men whose opinion seem to you wrong and even dangerous; and the subject is entitled only to be deprived of his liberty by due process of law, although that due process if taken will probably send him to prison. A man undoubtedly guilty of murder must yet be released if due forms of law have not been followed in his conviction. It is quite possible, even probable, that the subject in this case is guilty of high treason; he is still entitled only to be deprived of his liberty by due process of law. (Emphasis supplied) 31. As early as in 1627, the following memorable observations were made by Hyde, C.J. in Darnel, Re, (1627) 3 St Tr. 1: "Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and if it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison." 32. In Halsbury's Laws of England, (4th Edn., Vol.11, Para 1454, P.769), it is stated : "In any matter involving the liberty of the subject the action of the Crown or its ministers or officials is subject to the supervision and control of the judges on habeas corpus. The judges owe a duty to safeguard the liberty of the subject not only to the subjects of the Crown, but also to all persons within the realm who are under the protection of the Crown and entitled to resort to the courts to secure any rights which they may have, and this whether they are alien friends or alien enemies. It is this fact which makes the prerogative writ of the highest constitutional importance, it being a remedy available to the lowliest subject against the most powerful. The writ has frequently been used to test the validity of acts of the executive and, in particular, to test the legality of detention under emergency legislation. No peer or lord of Parliament has privilege of peerage or Parliament 4 against being compelled to render obedience to a writ of habeas corpus directed to him." 7. Hon'ble the Supreme Court further in the case of Girish v. Dadhamony K. and others, reported in (2009) 16 SCC 360, has held as under in regard to directions which may be issued by the Court in a writ of habeas corpus :- “3. Anjana Devi appeared in court and stated that she was a major and that she had married the appellant herein and she was living with him. Curiously enough, the High Court, instead of dismissing the petition and leaving the parties to take recourse to such other remedy which may be available to them in accordance with law, passed the impugned order directing registration of a case for offences allegedly punishable under Section 366, 366-A and 376 of the Penal Code, 1860. In our opinion, the High Court had no jurisdiction to give this direction. In a habeas corpus petition, all that is required is to find out and produce in court the person who is stated to be missing. Once the person appeared and she stated that she had gone of her own free will, the High Court had no further jurisdiction to pass the impugned order in exercise of its writ jurisdiction under Article 226 of the Constitution.” 8. The Division Bench of this Court in the case of Sulochana Bai vs. State of M.P. and others, reported in 2008 (2) MPHT 233 (DB), has held as under in regard to writ of habeas corpus :- “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 Vs. District Magistrate, AIR 1973 SC 2684, 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 Vs. Delhi Administration, AIR 1980 SC 15535, the Apex Court 5 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 Vs. 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 uit 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 Bawamiya Vs. Joint Secretary to the Government of India and others, (2000) 8 SCC 630, the said principle was reiterated. 8. In Mohd. Ikram Hussain Vs. State of U.P., AIR 1964 SC 1625, 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 6 High Court in, T. Ramachandran Vs. V.K. Kuttan and others, 1975 Cr. L.J. 1531, it has been held, 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 Dr. Mrs. Veena Kapoor Vs. Varinder Kumar Kapoor, AIR 1982 SC 792, 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 n Additional District Judge, if there is any at Chandigarh.” 11. In the case of State of Bihar Vs. Kamaeshwar Prasad Verma, AIR 1965 SC 575, 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 nd set him free if there is no legal jurisdiction for imprisonment. 12. In Anwar Vs. State of Jand K. AIR 1971 SC 337, it has been held that it must appear to the Court that the detention is in violation of the procedure established by law. 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 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.” 9. The Division Bench of this Court in the case of Shriram Gupta vs. Ramji Sharan Gupta and others, reported in 2006 7 (4) MPLJ 193, has held as under :- “6. No doubt, personal liberty of a person is a paramount importance for upholding the fundamental right of a person. The writ of 'habeas corpus' is a prerogative writ of the highest constitutional importance, being a remedy available to the meanest against the mightiest. It is acclaimed as a palladium of liberty of the common man. Despite the paramount importance and the high efficacy of the writ of Habeas corpus, its scope is circumscribed. The writ of Habeas Corpus is designed to afford immediate relief from illegal confinement or restraint and is used for the vindication of the right to personal liberty by scrutinizing the legality of the restraint. It is a process devised in the main for obtaining deliverance from unlawful detention, and its great object is the liberation of those who may be kept under wrongful restraint or captivity. 7. the writ of Habeas Corpus is available not only to a person detained in public custody, but also to any illegal restraint of freedom in private life. It can be issued not only for release from detention by the State but also for release from private detention. But prima facie, there should be a proof of illegal custody or detention against the person. 8. In this case, we do not find that any material has been placed before the Court that the person is in illegal custody of the respondents – State has also enquired into the matter. The relation between the petitioner, his missing Anil Gupta and respondents are not cordial and on investigation State has also found that Anil Gupta is not in custody of the respondents. In these circumstances, it is difficult for this Court to issue any writ of Habeas Corpus for the release of the detenue.” 10. Regulation 419 of the M.P. Police Regulations prescribes procedure in regard to investigation by the police in a case of missing person. Learned Additional Advocate General also produced a copy of the instructions issued by the Police Department in regard to search of missing persons and as per the afore said directions it is the duty of the police to publish photos and personal informations of missing persons in news-papers, and also exhibit the same in All India Radio, Doordarshan, and T.V. 11. From the aforesaid judgments of Hon'ble the Supreme Court and Division Bench judgment of his Court in Shriram Gupta (supra), it is clear that writ of habeas corpus can only be 8 issued when there is an assertion of wrongful confinement. The habeas corpus petition could not be converted into a petition of investigation in regard to search of a missing person. However, it is also to be remembered that personal liberty of a person is an important right and the police has a duty to search out the missing person and also take all efforts to find out whereabouts of the missing person, especially in cases where the girls are minor or the corpus is a lady because there is a possibility that the girl or lady may be killed, kidnapped or may be sold out for illegal trafficking, hence, the onus on the police in such cases is heavy and it is the duty of police Authorities to take all efforts to find out whereabouts of the corpus and produce the same before the Court. 12. In this view of the aforesaid facts facts, petition of the petitioner is disposed of with the following directions :- (1) That the police Authorities shall take all the steps to search out the missing person and it shall also take help from other wings of the police specially the C.I.D. wing. (2) The Police Authorities are also directed to publish photo and personal informations in regard to corpus in news papers and Doordarshan and publish information that any person who finds out the missing person the same be informed to police in regard to whereabouts of the missing person. If the corpus be traced out then he shall be produced before the Chief Judicial Magistrate of concerned district. (S.K.Gangele) (Brij Kishore Dube) Judge Judge (21.10.2011). (21.10.2011).