Petitioner filed Habeas Corpus for daughter missing since May 2024. Court held Article 226 unavailable without evidence of illegal detention or restraint. Petitioner failed to show daughter was detained against her will. Petition dismissed.
Habeas Corpus Petition dismissed. Cost of Rs.10,000/- imposed payable to Chief Justice Relief Fund.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
H.C.P.No.1742 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.07.2024
CORAM :
THE HONOURABLE MR. JUSTICE M.S.RAMESH AND
THE HONOURABLE MR. JUSTICE SUNDER MOHAN
H.C.P.No.1742 of 2024
Selvi .. Petitioner/
Mother of the detenue
Versus
Prayer : Habeas Corpus Petition filed unde r Article 226 of the Constitution of India praying for the issuance of a Writ of Habeas Corpus, directing the 2nd respondent Police to produce the detenue namely Kavya, D/o.Deivakumar, aged about 20 years, before this Court and set her at . liberty
For Petitioner : Mr.R.Prabudoss
For Respondents : Mr.A.Gokulakrishnan, Additional Public Prosecutor
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ORDER
M.S.RAMESH, J. and SUNDER MOHAN, J.
Complaining that the petitioner's daughter had gone missing from 28.05.2024 onwards, her complaint made on 29.05.2024 came to be registered by the second respondent Police in Cr.No.359 of 2024. Since there is no fruitful action taken by the respondent Police, she has chosen to file the present Habeas Corpus Petition.
2. Though the learned counsel for the petitioner submitted that the petitioner's daughter is in the illegal custody of somebody, we are unable to appreciate such a statement since the identity of the person, holding the custody, is not known to the petitioner. More particularly, when the petitioner's daughter is a major.
3. The consequential issue that arises is as to whether Article 226 of
the Constitution of India can be invoked for issuance of a Writ in the nature
of Habeas Corpus, when the aspect of “illegal detention” is conspicuously absent.
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4. A Writ in the nature of Habeas Corpus is a prerogative Writ by virtue of which the cause and validity of detention of a person are investigated by a summary procedure. There are certain basic principles for assuming jurisdiction while dealing with a Writ of Habeas Corpus.
5. When an authority holding custody of the detenue, fails to satisfy the Court with regard to the deprivation of his personal liberty, then a Writ of Habeas Corpus will be issued to set the alleged detenue at liberty. However, when the authority satisfies the Court that the detention was through established procedure of law and such detention being legal, then in such cases, a Writ of Habeas Corpus will not be issued. These situations usually arise in cases of preventive detention.
6. In cases of illegal detention of someone, at the behest of another person and the detenue is deprived of his/her liberty, a Writ of Habeas Corpus could be issued to set forth the detenue at liberty. In such nonstatutory cases, this Court may direct the person who has detained another person, to produce the latter before the Court, so as to enable the Court to know on what ground he/she has been detained. On being satisfied that a person, who is a major by age, has been detained against his/her choice or
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willingness and has been deprived of his/her personal liberty, the Court may then subject him/her at liberty.
7. In the case of 'Soni Gerry Vs. Gerry Douglas' reported in '(2018) 2 SCC 197', the Hon'ble Supreme Court, while dealing with a case where the daughter of the petitioner therein, who was a major by age, had expressed her desire to reside in Kuwait, where she was pursuing her education, it was observed thus:-
“ 9............ She has, without any hesitation, clearly stated that she intends to go back to Kuwait to pursue her career. In such a situation, we are of the considered opinion that as a major, she is entitled to exercise her choice and freedom and the Court cannot get into the aspect whether she has been forced by the father or not. There may be ample reasons on her behalf to go back to her father in Kuwait, but we are not concerned with her reasons. What she has stated before the Court, that alone matters and that is the heart of the reasoning for this Court, which keeps all controversies at bay.
10. It needs no special emphasis to state that attaining the age of majority in an individual's life has its own significance. She/He is entitled to make her/his
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choice. The courts cannot, as long as the choice remains, assume the role of parens patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father. We say so without any reservation. ”
8. In the case of 'Mohd. Ikram Hussain Vs. State of U.P.' reported in 'AIR 1964 SC 1625', it was observed that a Writ of Habeas Corpus is a Writ of right and not a Writ of course and may be granted only on reasonable grounds or probable cause being shown. In 'Kanu Sanyal Vs. District Magistrate, Darjeeling' reported in '(1973) 2 SCC 674', the Hon'ble Supreme Court held that the object of a Writ of Habeas Corpus is to secure release of a person, who is illegally restrained of his liberty.
9. The exercise of the extraordinary jurisdiction for issuance of a Writ of Habeas Corpus would, therefore, be seen to be dependent on the jurisdictional fact that the applicant establishes a prima facie case that the detention is unlawful. It is only where the aforementioned jurisdictional fact
is established that the applicant becomes entitled to a Writ, as of right, as
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held in the case of 'Rajeswari Chandrasekar Ganesh Vs. State of Tamil Nadu and Others' reported in '(2022) SCC OnLine SC 885'. Thus, the petition seeking for such a relief should prima facie disclose that a person is under illegal detention by someone and only on satisfaction of the same, the Court will proceed to issue a Writ for production of the person from such illegal detention.
10. If that be so, we are unable to appreciate the conduct on the part of the petitioner in having invoked Article 226 of the Constitution of India, which Habeas Corpus Petition is apparently not maintainable.
11. The petitioner has abused the due process of law, more particularly, when an alternate remedy under Section 482 of Code of Criminal Procedure is also available to her. Thus, we are of the view that cost could be imposed on the petitioner for having abused the due process of law.
12. In the result, the Habeas Corpus Petition stands dismissed with a cost of Rs.10,000/-, which amount shall be paid by the petitioner to the
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Chief Justice Relief Fund, Madras High Court, Chennai, within a period of
four (4) weeks from the date of receipt of a copy of this order.
[M.S.R., J] [S.M., J]
24.07.2024
Index : yes/no Speaking order/Non-speaking order Neutral Citation : yes/no grs
To
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M.S.RAMESH, J. AND SUNDER MOHAN, J.
grs
H.C.P.No.1742 of 2024
24.07.2024
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3 issues framed by the court
Whether Article 226 of the Constitution can be invoked for a Writ of Habeas Corpus when illegal detention is absent.
Whether a Habeas Corpus petition is maintainable when the petitioner cannot establish a prima facie case of illegal restraint.
Whether the petitioner's conduct amounts to an abuse of the due process of law and if costs should be imposed.
Colour shows how this judgement treated each authority
Soni Gerry Vs. Gerry DouglasExplained¶37
(2018) 2 SCC 197 · Who else cites this
Mohd. Ikram Hussain Vs. State of U.P.Explained¶43
AIR 1964 SC 1625 · Who else cites this
Kanu Sanyal Vs. District Magistrate, DarjeelingExplained¶43
(1973) 2 SCC 674 · Who else cites this
Rajeswari Chandrasekar Ganesh Vs. State of Tamil Nadu and OthersExplained¶49
(2022) SCC OnLine SC 885 · Who else cites this
Selvi
The Superintendent of Police, Kallakurichi District
The Inspector of Police, Kallakurichi Police Station
M.S.RAMESH
SUNDER MOHAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
