Madras HC frowns upon filing of Habeas Corpus petitions in missing persons cases

The Madras High Court recently emphasised that Habeas Corpus petitions cannot be filed in missing persons cases, particularly when there is nothing to show that the person in question has not been illegally detained..The Bench of Justices SM Subramaniam and S Ramathilagam made the observation while examining a Habeas Corpus petition filed by a woman to find her missing husband..The petitioner’s husband had gone missing after he left home in 2011. The petitioner filed a man-missing case with the police in 2017. The petitioner’s move to thereafter invoke writ jurisdiction came under the Court’s criticism, after it was noted that there was not even an iota of doubt that there was any illegal detention of the husband in the case..Various observations made by the Court served to support this conclusion. For instance, the police complaint was made about six years after the petitioner’s husband went missing. Further, the petition preferred did not contain any positive allegations that the petitioner’s husband had been detained illegally..“Except the fact that the detenu was found missing by the writ petitioner, no other allegations are set out in the present Habeas Corpus Petition.”.Given these findings, the Court reiterated that the limited scope of Habeas Corpus jurisdiction would not cover the instant case. The order notes,.“…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 suspicion in respect of such illegal detention….It is necessary that violation of the fundamental rights enshrined under Part III of the Constitution of India must be established for the purpose of filing the Habeas Corpus petition….This being the scope of the Habeas Corpus petition, we are of the strong opinion that the Constitutional Courts should show some restraint in entertaining such Habeas Corpus petitions in relation to Man/Women missing cases.”.In particular, the Court criticised the tendency to invoke Habeas Corpus jurisdiction in missing persons’ cases. It was emphasised that such cases should be dealt as regular cases by competent courts. The extraordinary jurisdiction of the Court cannot be resorted to for such cases..“This Court is frequently witnessing that Man/Women Missing cases are converted as Habeas Corpus petitions....Man/Women missing cases cannot be brought under the provision of the Habeas Corpus petition. Man/Women missing cases are to be registered under the regular provisions of the Indian Penal Code and the Police officials concerned are bound to investigate the same in the manner prescribed under the Code of Criminal Procedure. .Such cases are to be dealt as regular cases by the competent Court of Law and the extraordinary jurisdiction of the Constitutional Courts cannot be invoked for the purpose of dealing with such Man/Women Missing cases.”.With these observations, the Bench proceeded to dismiss the petition..Read Order below: