The Lucknow Bench of the Allahabad Court while dismissing the petition said that the writ of Habeas Corpus cannot be issued in respect of missing person more so when no named person is alleged to be responsible in the F.I.R for the illegal detention of the person for whose production a writ is sought to be issued.
A Single Bench of Justice Karunesh Singh Pawar passed this order while hearing a Habeas Corpus petition filed by Minor through her Mother.
The petition has been filed by the detenue through her next friend Smt Meena @ Kiran (mother of the detenue) praying for issuance of a writ in the nature of Habeas Corpus directing the respondents to produce the corpus of the child/detenue forthwith.
Counsel for the petitioner submitted that the detenue is missing since 25.6.2022 at 4.00 pm to 6.00 pm from Mohalla Shakti Nagar, Police Station Gazipur, Lucknow.
He further submitted that some scuffle took place between the child and respondent no 4 and on the very next day the child became missing, hence, an application was moved at Police station Gazipur. Thus it is apprehended by the petitioner that the detenue has been kidnapped by respondent no 4.
It has been further submitted that an F.I.R under Section 363 Indian Penal Code regarding missing of the detenu was registered as F.I.R under Section 363 I.P.C, Police Station Gazipur, District Lucknow.
It is alleged in the F.I.R by the complainant Ramtej, who is the husband of the deponent of this petition, that his son Mahesh, aged about 9 years went missing from yesterday between 4.00 pm to 6.00 pm. He used to drink shikanji for the last two months and he had developed some relationship with a shikanji seller and he was last seen in the shikanji shop. No allegation in the F.I.R whatsoever has been made against the respondent no 4 regarding illegal detention. Pamphlets regarding the missing of the detenue have been pasted in the local area of the Police Station Gazipur one of which is also on record. Nothing except missing of the detenue has been mentioned in the F.I.R as well as in the pamphlet.
The F.I.R was lodged on 27.6.2022. Now the writ petition is filed after more than one year i.e on 17.10.2023 by the mother on behalf of the detenue by making improvement in the prosecution case alleging that Mahesh appears to have been kidnapped by unknown miscreants at the behest of respondent no 4. Still no clear statement has been made by the deponent in the petition that the detenu has been illegally detained by respondent no 4. The facts pleaded in the petition are definite improvement from a story of the prosecution in the F.I.R which has been alleged by none other than father of the detenue.
A.G.A for the respondent State has submitted that the investigation was started immediately after lodging of the F.I.R for search of the missing child/detenue. DCRB has been informed and posters have been pasted at the public places. The investigation is going on. Search operations are also going on. Information regarding missing persons has been given in various newspapers and broadcast in All India Radio and Doordarshan still the missing persons have not been recovered. During investigation one dead body has been received and his clothes and the DNA samples have been sent to the Forensic Science Laboratory for the testing.
It is further submitted by A.G.A that it is clear from perusal of the F.I.R that it is a case of missing and F.I.R was rightly lodged by the father of the detenu. After more than one year since the deponent of this petition being the mother is not satisfied with the investigation by making improvement in the prosecution story has alleged that at the behest of respondent no 4 some unknown miscreants have kidnapped the detenue.
He also submitted that where the missing report has been lodged the petition of Habeas Corpus will not lie.
The Court observed that,
It is not disputed that earlier an F.I.R was lodged by the father of the detenu which was registered as Case under Section 363 Indian Penal Code Police Station Gazipur, District Lucknow against unknown persons on 27.6.2022. While lodging the F.I.R no allegation against respondent no 4 has been leveled by the complainant that he has kidnapped the detenue rather a simple missing F.I.R was lodged and consequently the investigation started which is still pending. The information regarding missing of the detenue has been given to various new channels newspapers and pamphlets have been pasted across the city. However, no success has been gained by the police. It appears that in utter frustration and being annoyed by the investigation the petition has been filed by changing the prosecution story for the first time after more than one year by the deponent.
The law for issuance of Habeas Corpus is settled. The petitioner has to show as the condition precedent prima facie that the detenue is in unlawful detention before it prays the court for issuing the prerogative writ.
The Court has taken notice of the fact that in the F.I.R, which was lodged by none other than the father of the detenu, no allegation of illegal detention of the detenue by respondent no4 has been made. Now after more than one year, while filing writ petition through the mother of the detenue, for the first time, it has been alleged that the detenu has been kidnapped at the behest of respondent no 4. This is a clear case of improvement and changing the prosecution story so that the case of Habeas Corpus may be made.
“The Writ in the nature of Habeas Corpus cannot be issued in a routine and casual manner. The writ of Habeas Corpus is festinum remedium and unless there is a clear case established by the petitioner prima facie to show that the detenue is in illegal confinement no writ of Habeas Corpus can be issued. 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 in the F.I.R for the illegal detention of the person for whose production a writ is to be issued. The petitioner has failed to establish prima facie case of unlawful detention of her daughter. A Writ of Habeas Corpus cannot be issued by this Court for tracing out a missing person particularly when the F.I.R of missing has already been lodged more than one year back by the father of the detenue where there is no allegation of illegal detention.
On due consideration of the law laid down by the Supreme Court in the case of Nimananda Biswal (supra), Union of India Vs Yumnam Anand M alias Bocha alias Kora alias Suraj(supra) as well as Home Secretary (Prisons) and others Vs H Nilofer Nisha reported in (2020) 14 Supreme Court Cases 161, I am of the view that writ of Habeas Corpus cannot be issued in respect of missing person more so when no named person is alleged to be responsible in the F.I.R for the illegal detention of the person for whose production a writ is sought to be issued”, the Court further observed while dismissing the petition.