Recently, the division bench comprising, Justice Sangam Kumar Sahoo and Justice Sibo Sankar Mishra of the Orissa High Court has held that a writ of habeas corpus cannot be invoked solely to locate "missing persons as proving ‘illegal detention’ by a particular person is a pre-condition before the said writ can be put to use.

When refusing to provide relief to the petitioner who sought the issuance of a writ to locate her daughter, the Court made the following observation:

“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.”

“No material was produced to show that the daughter of the petitioner has been illegally detained by anyone. It is needless to say that the Court has to be satisfied about the factum of ‘illegal detention’ before it proceeds to entertain a petition seeking issuance of the writ of habeas corpus,” the Court added.

Case Brief -

In the said matter, the petitioner's daughter had been untraceable for an extended period, leading the petitioner to file an F.I.R. Nevertheless, the petitioner alleged that despite nearly a year passing since the F.I.R. was filed, the police had not taken any substantial measures to locate his daughter. Therafter, the Petitioner approaches the High Court, seeking the issuance of a writ of habeas corpus.

After considering the submissions presented on behalf of the petitioner, the Court queried as to how the demand for issuance of the writ of habeas corpus is maintainable since the matter seemed to be a case of ‘missing person’.

Subsequently, the Court referred to several judgments issued by both the Supreme Court and various High Courts, which established the well-established legal position that a writ of habeas corpus cannot be issued in cases involving missing persons.

The Court gave the refereces of various cases incudes, Home Secretary (Prisons) & Ors. v. H. Nilofer Nisha wherein it was held as follows:

“Even though, 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 of law.”

In this particular case, the Court observed that the petitioner was unable to establish a prima facie case of "unlawful detention" of his daughter by any specific individual. Instead, it was presented on his behalf that his daughter had gone missing.

“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,” the Court added.

Accordingly, the petition was dismissed after granting liberty to the petitioner to pursue other effective legal remedy.

Case Title: Nimananda Biswal v. State of Odisha & Ors