Gauhati High Court: Kalyan Rai Surana, J., held that the writ of habeas corpus cannot be invoked unless there is an allegation of illegal detention. The Bench said,

“Establishing a ground of illegal detention and a strong suspicion about any such illegal detention is a condition precedent for moving a habeas corpus petition.”

By filing this writ petition in the nature of habeas corpus, the petitioner had prayed for direction to recover her son, who had gone missing since 04-09-2016 and on failure of the State machinery to trace out the missing son of the petitioner, to pay compensation of Rs.50,00,000 to the petitioner and the wife of the missing person. The petitioner submitted that it was the responsibility of the Government to look after the security of its citizens and as the State could not provide security to her son, the State was duty bound to pay compensation. It was also submitted that more than 5 years had passed but except for submitting status reports, the State Police could do nothing and was clueless about whereabouts of her son.

Stand Taken by the State

The State submitted that the son of the petitioner had not only taken loan from the bank but he had also taken loan from many other private persons and had gone missing thereafter, moreover, the missing person had never approached the police seeking any protection and as such, hence, the State did not owe any duty to keep the son of the petitioner under protective surveillance.

The State argued that compensation could be granted only if right to life protected under Article 21 of the Constitution of India was violated by the State or its employees and public law remedy was not available to direct the State to pay compensation if a person goes missing out of his own volition.

Analysis and Opinion

Noticeably, after the FIR was filed, wide media publicity was given regarding the missing son of the petitioner and his photos were also published. On 19-01-2018, a report was submitted to the Superintendent of Police, that the matter was referred to CID Branch but the missing person could not be traced out.

Considering that there was no material on record to even faintly suggest that the son of the petitioner had gone missing after any action taken by the State Administration including Police, Para-military and Armed Forces, and that there was no material to show that the missing person had any threat perception from any militant or extremist groups and the State Police had never been called upon to provide any police protection to the missing person, the Bench stated that there was there was no material to show that the son of the petitioner had gone missing because of any negligence on part of the Police of State Administration.

Reliance was placed by the Court on Selvaraj v. The State, H.C.P. 2309/2016, wherein it had been held that, “a Man/Women voluntarily moving from their dwelling house to any other place of his/her own choice, then his/her family members or other person concerned with such a person can file a case for Man missing and on receipt of any such complaint, the Police having jurisdiction has to investigate the matter in the manner known to law. Under these circumstances, question of entertaining a Habeas Corpus Petition by the High Courts would not arise at all. Thus, it is a condition precedent that a person filing a Habeas Corpus Petition should establish that there is a prima facie case of illegal detention or at least a strong and reliable suspicion in respect of such illegal detention.”

Hence, the Bench held that establishing a ground of illegal detention and a strong suspicion about any such illegal detention is a condition precedent for moving a habeas corpus petition. Thus, the Bench stated, the Constitutional Courts would not entertain habeas corpus petitions where there is no allegation of illegal detention or suspicion regarding illegal detention. The Bench clarified that,

“Missing person cases would not come within the ambit of a habeas corpus petition, but such cases are required to be registered under the regular provisions of the Indian Penal Code and the police and other investigating agencies would investigate the same in the manner prescribed under the Code of Criminal Procedure.”


Since no apprehension of kidnapping of illegal detention was made when the FIR had been lodged and at no point of time till date any witness examined by the police so far had expressed their apprehension that the son of the petitioner was kidnapped by any person including extremists, the Bench held that there being no iota of doubt that the son of the petitioner had suffered any illegal detention, the habeas corpus petition was held to be not maintainable. [Mamoni Kakoty v. State of Assam, W.P. (Crl.): 2 of 2018, decided on 28-09-2021]

Kamini Sharma, Editorial Assistant has reported this brief.

Appearance by:

For the Petitioner: Advocate B K Bhattacharjee

For the Respondent: GA, Assam

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