Mrs.R. Dharamabal,58 Yrs, v. The Inspector Of Police,
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.06.2018 Coram THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM & THE HON'BLE MRS.JUSTICE S.RAMATHILAGAM H.C.P.No.2090 of 2017 Mrs.R.Dharmambal ... Petitioner Vs.
The State, Rep. by the Inspector of Police K-9, Thiru-vi-ka Nagar Police Station Perambur, Chennai - 600 011.
... Respondent PRAYER: Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Habeas Corpus, directing the respondent herein to produce the person and body of his father namely C.Thangaraj before this Court and set him at liberty. For Petitioner : Mr.P.Manikannan For Respondent : Mr.R.Ravichandran Govt. Advocate.
O R D E R
(Order of the Court was made by S.M.SUBRAMANIAM, J.) The relief sought for in this Habeas Corpus Petition is for a direction to direct the respondent to produce the person and body of his father viz., C.Thangaraj, before this Court and set him at liberty.
2. The detenu is aged about 92 years. The petitioner is the daughter of the detenu. On a careful perusal of the entire affidavit filed in support of the present Habeas Corpus Petition, we are able to find that not even a single ground in relation to suspicion or illegal detention. In the absence of any suspicion or illegal detention, the question of entertaining the Habeas Corpus Petition under Article 226 of the Constitution of India could not arise at all. It is the condition precedent that suspicion or illegal detention is to be established for entertaining the Habeas Corpus Petition. The averments made in
the affidavit states that the father of the petitioner Mr.C.Thangaraj, aged about 92 years was missing from her residence at No.54/3, Maduraisamy Madam, Sembium, Chennai - 600 011 from 21.02.2017 onwards. Except the statement that the father of the petitioner was missing, there is no allegation or suspicion in relation to the illegal detention or otherwise.
3. Pursuant to the notice ordered by this Court, the respondent police commenced the investigation process. The Status Report was filed by the Inspector of Police, K-9 ThiruVi-Ka Nagar Police Station, Chennai on 13.11.2017. The said status report reveals that on receipt of the complaint from the petitioner, a case was registered in Crime No.386 of 2017 under 'man missing' on 11.03.2017 at 9.00 hrs. Pursuant to the filing of the present Habeas Corpus Petition, further investigations were conducted and the respondent police collected the photograph of the detenu and the particulars. They have examined the defacto complainant, wife of the detenu, mother of the petitioner and the husband of the petitioner, almost the witnesses, corroborated the version stated in the complaint.
4. The respondent police proceeded with the investigation by forming a Special Team headed by the Sub Inspector of Police. The team went to various places at Madhavaram, Perambur, Mahavaram Milk Colony, Kodungaiyur, Aynavaram, Coimbedu, Vysarpadi, MMDA, Manali, Minjur and surrounding areas and circulated the pamphlets along with details of the detenu and his photograph was pasted at various public places, like Railway Stations, Bus stands, Temples, Markets, Shopping Malls, Theatres, Hospitals, and Auto Stands. However, the respondent police is unable to secure any clue in respect of the detenu.
Pending investigation, the Special Team visited the mortuaries of the Government Hospital at Kilpauk Medical College Hospital, Rajiv Gandhi Government Hospital, Stanley Government Hospital and Government Royapettah Hospital and conducted an enquiry. However, they are unable to trace out any information about the missing man/detenu. On 15.03.2017, the respondent sent a requisition letters to the leading News Papers viz., Dinathanthi and Dinamalar to publish the details of the missing man and his photograph with details. Accordingly, the publication was effected. In spite of all these efforts, the respondent is unable to secure any clue regarding the whereabouts of the detenu/missing man.
5. We are of the opinion that illegal detention is the precondition for the purpose of entertaining the Habeas Corpus Petition. All regular man or woman missing cases cannot be converted as a Habeas Corpus petition under Article 226 of the Constitution of India. All man or woman missing cases are to be registered properly and the investigations are to be conducted
in the manner known to law. Only in the event of establishing an illegal detention or otherwise, no Habeas Corpus Petition shall be entertained by this Court. In this regard, the Hon'ble Apex Court of India, settled the legal principles in the case of Sulochana Bai Vs. State of M.P. And others and held as follows: "4. The writ of habeas corpus as had been called by Blackstone "the great and efficacious writ in all manner of illegal confinement". The Apex Court in the case of Kanu Sanyal v.
District Magistrate, traced the immemorial antiquity of the writ and referred to number of English decisions and opined that there can be no doubt that in enacting Article 32 (2) the Constitution makers meant to give to person illegally restrained of his liberty the same kind of remedy, fashioned and developed over the years, which his counterpart enjoyed in England and United States. Their Lordships further proceeded to state that while dealing with an application for the writ of habeas corpus under Article 32 the Supreme Court may not require the body of the person detained to be brought before the Court. The production of the body of the person detained is not essential to the jurisdiction of the Supreme Court to deal with the application.
Their Lordships expressed if the detention is found to be unlawful, an order to release him is to be passed forthwith.
5. In Prem Shanker Shukla v. Delhi Administration , the Apex Court has ruled thus: "The raw history of human bondage and the roots of the habeas corpus writ enlighten the wise exercise of constitutional power in enlarging the person of men in unlawful detention. No longer is this liberating writ trammelled by the traditional limits of English vintage; for, our founding fathers exceeded the inspiration of the prerogative writs by phrasing the power in larger diction. That is why, in India, as in the similar jurisdiction in America, the broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in legal custody, if the cruelty is contrary to law, degrades human dignity of defiles his personhood to a degree that violates Articles 21, 14 and 19 enlivened by the preamble."
6. In Additional Secretary to the Government of India v. Alka Subhash Gadia 1992 Suppl. (1) SCC 496, it has been held that the Courts must insist that the aggrieved person must allow the due
operation and implementation of the concerned law and exhaust the remedy provided by it before approaching the High Court to invoke the discretionary, extraordinary and equitable jurisdiction which has to be very sparingly used. Their Lordships laid down certain guidelines where the Court should interfere prior to execution of order of detention.
7. In Sayed Taher Bqwamiya v. Joint Secretary to the Government of India and Ors. , the said principle was reiterated.
8. In Mohd. Ikrarn Hussain v. State of U.P. , it has been held as under:
"Exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of Habeas Corpus is probably never used by a husband to regain his wife and the alternative remedy under Section 100 of the Code of Criminal Procedure is always used. Then there is the remedy of a civil suit for restitution of conjugal rights. Husbands take recourse to the latter when the detention does not amount to an offence and to the former if it does. In both these remedies all the issues of fact can be tried and the writ of habeas corpus is probably not demanded in similar cases if issues of fact that first to be established. This is because the writ of habeas corpus is festinum remedium and the power can only be exercise in a clear case."
9. In this context a Division Bench of the Kerala High Court in T. Ramachandran v. V.K. Kuttan and Ors. 1975 Cr.LJ 1531, it has been held that the issue of writ of habeas corpus would necessarily pre-supposes the factum of wrongful confinement.
10. In the case of Dr. Mrs. Veena Kapoor v.
Varinder Kumar Kapoor , the Apex Court while dealing with the custody of a minor child in habeas corpus petition expressed the opinion as under:
"3. It is difficult for us in this habeas corpus petition to take evidence without which the question as to that is in the interest of the child cannot be satisfactorily be determined. We, therefore, direct that the learned District Judge, Chandigarh, will make a report to us before 23rd of this month on the question as to whether the custody of the child should be handed over to the petitioner-mother, taking into consideration the interest of the minor. The learned Judge will give
liberty to the parties to adduce evidence on the question in issue. The learned District Judge may either take up the matter himself or assign it to an Additional District Judge, if there is any at Chandigarh."
11. In the case of State of Bihar v.
Kameshwar Prasad Verma , it has been held that habeas corpus is a writ in the nature of order calling upon the person who was detained by another to produce the latter before the Court so that the Court can know on what ground he has been confined and set him free if there is no legal jurisdiction for imprisonment. In Anwar v. State of J and K , it has been held that it must appear to the Court that the detention is in violation of the procedure established by law."
6. In the present case on hand, even in the affidavit filed in support of the writ petition, the petitioner has not established even the semblance of suspicion or an allegation of illegal detention in respect of the detenu, who is none other than the father of the writ petitioner and aged about 92 years.
7. Under these circumstances, we are convinced that the respondent have taken efforts to trace out the whereabouts of the detenu and the entire efforts went in vain and became clueless. Thus, no useful purpose would be served in keeping the present petition pending. This being the factum of the case, the respondent police is directed to continue the investigation in respect of the regular case registered under man missing based on the complaint given by the defacto complainant.
Accordingly, this Habeas Corpus Petition stands dismissed. Sd/- Assistant Registrar(CS-VIII) //True Copy// Sub Assistant Registrar vsm
To 1.The Inspector of Police K-9, Thiru-vi-ka Nagar Police Station Perambur, Chennai - 600 011.
2.The Public Prosecutor, Madras High Court, Chennai.
+1cc to Mr.P.MANIKANNAN, Advocate, S.R.No. 39484 H.C.P.No.2090 of 2017 MR(CO) TR(03/07/2018)