Habeas Corpus Not Maintainable for Tracing Missing Persons Absent Prior Proof of Illegal Detention

The petitioner, Smt. Sunila Bhaumik, filed a Habeas Corpus petition seeking the recovery of her minor daughter, Miss Viliyam Bhaumik, born on 17.05.2008

The daughter went missing from their residence on the night of 22.04.2026

A missing person report was lodged on 23.04.2026, and subsequently, an FIR was registered against an unknown person

The petitioner alleged that Respondent No. 6, Ankush Kurre, had enticed the minor and was holding her in illegal custody

Despite representations to the Inspector General and Superintendent of Police, the girl remained untraced, prompting the petitioner to invoke Article 226 of the Constitution

1. Whether a writ of habeas corpus can be issued for a missing person in the absence of prima facie evidence of illegal detention.

2. Whether the extraordinary jurisdiction under Article 226 is the appropriate remedy for tracing a missing person when a criminal investigation is already underway.

The Court primarily applied the principles governing the writ of Habeas Corpus under Article 226 of the Constitution, emphasizing that illegal confinement is a condition precedent for its issuance

It relied on the Constitution Bench decision in Kanu Sanyal v. District Magistrate, Darjeeling, which defined the writ as a procedural device to secure the liberty of a person unlawfully restrained

Further, the court applied Union of India v. Yumnam Anand M., establishing that while it is a writ of right, it is not a "writ of course" and requires a prima facie case of unlawful detention

Precedents such as Smt. Nirmala Patel v. State of Chhattisgarh, Swapan Das v. State of West Bengal, and Sulochana Bai v. State of M.P. were cited to affirm that missing person cases fall under the domain of statutory criminal investigation rather than extraordinary writ jurisdiction

The Court reasoned that a writ of habeas corpus is specifically designed for immediate release from unlawful detention, not as a tool for tracing missing persons

In the present case, although the petitioner suspected Respondent No. 6, the Court found a lack of prima facie material or evidence to substantiate the allegation of "illegal detention" or "unlawful custody"

The Court observed that since a missing person report and an FIR had already been registered, the matter was subject to regular investigation under the Code of Criminal Procedure, which should be overseen by the competent criminal court rather than the High Court through a writ petition

The Court emphasized that extraordinary jurisdiction cannot be invoked to bypass regular legal machinery for missing persons unless clear grounds of illegal confinement are established

The Court ruled that cases of missing persons must be investigated under regular penal provisions and cannot be brought under habeas corpus jurisdiction as a matter of routine. However, the Court directed the investigating agency to continue earnest efforts to trace the minor girl in accordance with the law