Dismissed

Bhikamchand Karesia v. State and Ors.

Orissa HC3 Oct 2023WPCRL/254/2013

Case brief

AI extract

What is this about?

This court rejected a habeas corpus petition filed by a father to produce his missing son. Relying on settled law and recent precedent, the court held that a writ of habeas corpus cannot be issued merely to trace a missing person without evidence of illegal confinement by a specific individual. The petition was dismissed as not maintainable, and the investigating officer was directed to conclude t

What did the court decide?

Petition dismissed; Investigating Officer directed to conclude investigation and submit final report.

Bhikamchand Karesia Vs State and Ors. — Writ and Judicial Review | Orissa HC (2023)

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IN THE HIGH COURT OF ORISSA AT CUTTACK WPCRL No.254 of 2013

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Bhikamchand Karesia

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Petitioner

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Mr. Anirudha Das, Advocate.

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-versus-

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State of Odisha & others

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…. Opp. Parties.

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Mrs. Saswata Patnaik, Additional Government Advocate.

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CORAM: JUSTICE S.K. SAHOO JUSTICE SIBO SANKAR MISHRA

Order No.

ORDER 03.10.2023

This matter is taken up through Hybrid arrangement (video conferencing/physical mode).

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Heard learned counsel for the petitioner and learned counsel for the State.

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Ms. Palha Minz, Inspector of Police, CID, Crime Branch, Odisha, Cuttack is present in Court today.

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This writ petition has been filed by the petitioner for a direction to opposite party nos.1 to 4 to produce his son Dharmendra Kumar Karesia before this Court, inter alia, with other prayers.

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It appears that the daughter of the petitioner, namely, Sudha Vyas lodged the first information report before the IIC, Rajgangpur Police Station on 09.12.2012, on the basis of which Rajgangpur P.S. Case No.232 dated 09.12.2012 was registered under sections 363/506/34 of

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// 2 //

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the Indian Penal Code against the daughter-in-law of the petitioner and some of her family members. In the first information report, it is mentioned that there was a matrimonial dispute between the son of the petitioner and his wife and a case under section 498-A of the IPC was also instituted for which it is suspected that the F.I.R. named persons might have abducted the son of the petitioner.

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Learned counsel for the State submitted that a thorough investigation has been conducted and different places have been raided and the accused persons named in the F.I.R. have been interrogated and polygraph test has also been conducted but no material could be found that the son of the petitioner had been abducted by anybody. Learned counsel for the State has filed an affidavit of the Inspector of Police, CID, C.B., Odisha, Cuttack wherein it is mentioned in detail as to what steps have been taken from time to time to trace out the missing son of the petitioner. Learned counsel for the State further submitted that since there is no material that anyone has wrongfully detained or illegally confined the son of the petitioner and it may at best be a case of missing person, this writ petition in the nature of habeas corpus is not maintainable. Learned counsel for the State further submitted that till date no final form has been submitted in the case which was instituted at the instance of the daughter of the petitioner vide Rajgangpur P.S. Case No.232 dated 09.12.2012 merely because this writ petition is pending before this Court since 2013.

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Page 2 of 4

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The position of law regarding maintainability of petition seeking issuance of the writ of habeas corpus in cases of missing persons is no more disputed and stands fairly settled by incontrovertible pronouncements of not only the Hon?ble Supreme Court but also by this Court. In Nimananda Biswal –Vrs.- State of Odisha & others [WPCRL No.124 of 2023, decided on 08.09.2023], this Court had the occasion to hear a similar case of missing person being styled as a matter of >illegal confinement?. After threadbare consideration of the facts on record and having utmost regard for the authoritative precedents of the Highest Court in the cases of Union of India -Vrs.Yumnam Anand M. alias Bocha alias Kora alias Suraj and another reported in (2007) 10 Supreme Court Cases 190 and Home Secretary (Prisons) and others -Vrs.- H. Nilofer Nisha reported in (2020) 14 Supreme Court Cases 161 , this Court has come to the conclusion that prayer for issuance of the writ of habeas corpus cannot be entertained in a case of missing person and accordingly has observed as follows:

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<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. The writ of habeas corpus is festinum remedium and power can be exercised in clear case. Illegal confinement is a pre-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

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Page 3 of 4

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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 exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under Cr.P.C.=

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After hearing the learned counsel for the petitioner as well as learned counsel for the State, after going through the affidavits filed by the respective parties, we are satisfied that there is no material before us that the son of the petitioner namely Dharmendra Kumar Karesia aged about 43 years in the year 2012 has been wrongfully detained or illegally confined by anybody and since it is a case of missing person, taking into account the settled position of law, we are of the considered view that this writ petition is not maintainable.

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The I.O. shall do well to conclude the investigation at the earliest and submit the final form/final report before the appropriate Court at the earliest.

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It is made clear that we have not expressed any opinion with regard to the investigation of the case.

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With the aforesaid observation, the writ petition is accordingly disposed of.

(S.K. Sahoo)

Judge

(S.S. Mishra)

Signature Not Verified