In this habeas corpus petition, the petitioner sought a writ to direct police to produce a missing relative found missing for 115 days. The Court dismissed the petition as not maintainable, holding that habeas corpus is not for tracing missing persons and no allegation of illegal detention was made.
Writ petition dismissed as not maintainable.
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WPHC No.55 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR. JUSTICE B.VEERAPPA
AND
THE HON'BLE MRS. JUSTICE K.S.HEMALEKHA
WRIT PETITION HABEAS CORPUS No.55 OF 2022
BETWEEN:
…PETITIONER
(BY SRI. SAVITHA D., ADVOCATE)
AND:
…RESPONDENTS
Digitally signed by MALATESH K C
Location: High Court of Karnataka
(BY SRI V.S. HEGDE, SPP-II A/W SRI THEJESH P., HIGH COURT GOVERNMENT PLEADER)
THIS WPHC IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, BY THE PETITIONER, PRAYING TO ISSUE THE WRIT OF HABEAS CORPUS TO RESPONDENT
WPHC No.55 of 2022
NO.1 TO 2 AND DIRECT THE RESPONDENTS TO PRODUCE VICTIM/DETENUE RAJSHEKAHAR GOWDA BEFORE THIS HON'BLE COURT.
THIS WPHC COMING ON FOR ORDERS THIS DAY, B.VEERAPPA J., MADE THE FOLLOWING:
O R D E R
Case called out twice. None appears for the petitioner.
Sudharani v. State of Karnataka reported in ILR 2016 KAR
731 , at paragraphs 3 and 4 held as under:
"3. Learned Additional State Public prosecutor appearing for the respondents submits that, on the facts of the present case, no writ of habeas corpus could be issued to the respondents as it is not the petitioner's case that her husband has been detained wrongfully by the police or any other person. In support of his submission, he
WPHC No.55 of 2022
relies on a judgment of this Court in S.K. Naik v. The Police Sub-Inspector [ WPHC No. 194/2012 dated 19-10-2012] and also the judgment of the Calcutta High Court in Swapandas v. The State of West Bengal [ W.P. No. 17965/2013(W) dated 28-06-2013] . It is relevant to refer to the following observations made by this Court in S.K. Naik (supra):
“5. We find there is absolutely no occasion to issue a writ of habeas corpus, as the writ petitioners do not allege or aver in the petition that the police or any third party has held the missing person in illegal custody.
6. A writ of habeas corpus 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.”
(Underlining & emphasis supplied)
The following observations made by the Calcutta High Court in Swapandas (supra) may also be noticed:
WPHC No.55 of 2022
“… … … … … … … … … On the basis of a habeas corpus petition, the power under art. 226 is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under the Code of Criminal Procedure, 1973. The investigation, if in progress, is to be overseen by the criminal court. Here the petitioner is asking this court to direct the police to track down his missing son.”
(Emphasis supplied)
4. Habeas Corpus is a writ calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been detained, and to set him free if there is no legal justification for the detention. ‘Habeas Corpus’ literally means “have the body”. Writ of habeas corpus is also known as a “writ of liberty”. A writ of habeas corpus is issued for release of a person who has been detained unlawfully by the State or by any private individual. A writ of habeas corpus is not issued if the person concerned is not in unlawful detention.
WPHC No.55 of 2022
4. In view of the above, the writ petition is dismissed as
not maintainable.
Sd/-
JUDGE
Sd/JUDGE
kcm
2 issues framed by the court
Whether a writ of habeas corpus is maintainable to direct police to produce a missing person when no unlawful detention is alleged.
Whether the High Court can exercise power under Article 226 for tracing a missing person when the investigating agency is empowered to do so.
Colour shows how this judgement treated each authority
Sudharani v. State of KarnatakaReferred¶30
Sudharani v. State of Karnataka, ILR 2016 KAR 731 · Who else cites this
S.K. Naik v. The Police Sub-InspectorReferred¶36
S.K. Naik v. The Police Sub-Inspector [ WPHC No. 194/2012 dated 19-10-2012]
Swapandas v. The State of West BengalReferred¶40
Swapandas v. The State of West Bengal [ W.P. No. 17965/2013(W) dated 28-06-2013]
1 provisions across 1 enactments
SMT.ARATI, W/O HANUMESH
SUPERINTENDENT OF POLICE, CHIKKABALLAPURA DIST.
INSPECTOR OF POLICE, GOWRIBIDNUR CIRCLE, CHIKKABALLAPURA DIST.
B.VEERAPPA
K.S.HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
