Case Background
The petitioner is the father of a young woman, Priyanka Kumari, who had completed her MBA and was working in a private job in Patna. She was living in a girls’ hostel at Boring Canal Road, Patna.
On 11.04.2021, the petitioner tried to contact his daughter on her mobile phone. The call could not be connected. Worried, he went to her hostel. There, he was informed that she had been absent from the hostel for the last 15 days.
With the consent of the hostel caretaker, the lock of her room was broken open. During the search of the room, a marriage certificate was found. On reading the certificate, the petitioner discovered that his daughter had married Ambuj Kumar Srivastava, who is respondent no. 5 in this case.
The petitioner called respondent no. 5 on his mobile number and asked about his daughter’s whereabouts. According to the petitioner, respondent no. 5 did not give any satisfactory reply. The petitioner then suspected that his daughter might have been taken to Himachal Pradesh and killed by respondent no. 5.
On 13.05.2021, the petitioner submitted a written report to the Officer-in-Charge of Buddha Colony Police Station. On this basis, Buddha Colony P.S. Case No. 160 of 2021 was registered under Sections 363, 365, 420 and 406 read with Section 34 of the Indian Penal Code against respondent no. 5, his mother Sunita Devi, and his father Suresh Prasad.
The police arrested respondent no. 5 and later submitted a chargesheet against him for the offences mentioned in the FIR. On 15.07.2021, the learned Jurisdictional Magistrate took cognizance under Sections 363, 365, 420, 406 and 34 IPC. However, the petitioner’s daughter had still not been traced or recovered.
Feeling that the investigation was not giving any result, the petitioner approached the Patna High Court with a criminal writ petition under Article 226 of the Constitution, seeking a writ of habeas corpus for recovery and production of his daughter.
What the Court Examined and Decided
The Patna High Court, through a Division Bench of Hon’ble Mr. Justice Ashwani Kumar Singh and Hon’ble Mr. Justice Rajeev Ranjan Prasad, heard the petition on 29.11.2021.
Counsel for the petitioner argued that despite registration of the FIR and submission of the chargesheet, the police had failed to recover the petitioner’s daughter. According to him, the chargesheet was submitted mechanically, without proper investigation. He stressed that the daughter had vanished, a marriage certificate with respondent no. 5 had been found, and respondent no. 5 had not given a satisfactory explanation. Hence, he sought a direction in the nature of habeas corpus to secure her recovery.
On the other side, the State’s counsel submitted that the police had filed a report under Section 173(2) of the Code of Criminal Procedure only against respondent no. 5. The investigation was stated to be still continuing. He pointed out that the chargesheet was filed because the 60-day period from the date of arrest of respondent no. 5 was about to expire. Non-submission would have resulted in the accused getting “compulsive bail” under Section 167(2) Cr.P.C.
The State’s counsel made it clear that the police had not yet reached any final conclusion about whether the missing woman was in the illegal confinement of respondent no. 5. Therefore, in his view, a writ of habeas corpus was not maintainable, because it was not yet established that there was “illegal detention”. He submitted that this was essentially a law and order situation and the police were making sincere efforts to investigate from all angles.
The Court first noted an important factual aspect. The incident of the daughter going missing is said to have come to light on 11.04.2021, but the written report was lodged with the Buddha Colony Police Station on 13.05.2021, i.e., after about a month. The Court remarked that the matter was belatedly reported to the police.
The Court then observed that the allegations in the FIR do not themselves clearly constitute a cognizable offence, but clarified that whenever a cognizable offence is reported, the Officer-in-Charge must register an FIR and investigate. In this case, there was no complaint that the police had refused to register the case or that no investigation was being done. The FIR mainly raised suspicion that respondent no. 5 and his parents might have abducted and killed the petitioner’s daughter. It did not contain clear, direct information about her being confined at a particular place.
Because the criminal case was still under investigation, the Court stated that it would not be proper to comment on the merits of the allegations. From the FIR, it was clear that the petitioner himself was not in a position to state before the Court that his daughter was in the custody of any particular person, including respondent no. 5.
The Bench then examined the police report under Section 173(2) Cr.P.C. It noted that the investigation had been done only partially. The Court inferred that the chargesheet had been filed on the basis of a “half baked” investigation, primarily to prevent respondent no. 5 from getting default bail under Section 167(2) Cr.P.C. The Court expressed concern over this manner of investigation.
The Court emphasised that the duty of the police is not to keep someone in jail, but to bring an investigation to a logical end. A report under Section 173(2) Cr.P.C. should not be filed simply to block a person’s right to compulsive bail. In every reported case, the police are expected to conduct a sensitive and committed investigation so as to instill confidence in the minds of the public.
Having said that, the Court turned to the main legal question: when can a writ of habeas corpus be issued?
The Bench explained that habeas corpus is a prerogative writ historically developed in English common law to protect personal liberty. Referring to Halsbury’s Laws of England, the Court quoted the classic definition of habeas corpus ad subjiciendum as a process to secure immediate release from unlawful or unjustifiable detention, whether in prison or private custody. The High Court, on being moved by an aggrieved person, commands production of the detained person and enquires into the cause of detention. If there is no legal justification, the person is ordered to be released.
The Court then cited the Constitution Bench judgment of the Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling, which described habeas corpus as essentially a procedural writ dealing with the machinery of justice. Its purpose is to provide a speedy and effective remedy to a person illegally restrained, by having the legality of detention enquired into and, if found unlawful, by ordering release. The production of the body is a means to this end, not an end in itself.
The Bench further referred to the Supreme Court decision in State v. H. Nilofer Nisha, (2020) 14 SCC 161. There, the Apex Court held that habeas corpus can be issued only when detention or confinement is without authority of law. Though commonly used in preventive detention matters and now often in marital or child custody disputes, the basic limitation remains: the court must first come to the conclusion that the person is under detention without legal authority.
Summarising these principles, the Patna High Court held that “illegal confinement is the pre-condition” for issuing a writ of habeas corpus. It is a writ of right but not a writ of course. It is an extraordinary remedy and cannot be granted just on asking. It cannot be used casually or routinely.
In the present case, who is responsible for abducting or confining the petitioner’s daughter, and who is wrongfully confining her, are themselves questions under investigation. There is no definite material before the Court to show that she is alive and being illegally detained by a particular person. Thus, the basic requirement for habeas corpus is absent.
The Court also referred to the decision of the Allahabad High Court in Madhav Das Agrawal & Anr. v. State of U.P., 2007 (59) All.Cr.Cases 202. That decision held that in every case of kidnapping or abduction, the proper remedy is to lodge an FIR and have it investigated, not to seek a writ of habeas corpus. Where habeas corpus is sought against a private party, prima facie proof that the detenue is alive and in the illegal custody of that party is necessary.
The Bench added that in a criminal investigation, questions about what specific steps the police should take are not matters for a habeas corpus petition, especially when it is not alleged that the missing person is in police custody. Investigation of a cognizable offence is the sole domain of the police, and at this stage the Court has no role in directing how it must be done.
In light of these reasons, the Court concluded that a writ of habeas corpus could not be issued in this case. Habeas corpus is a “festinum remedium” – a swift remedy – and can only be exercised in a clear case where illegal detention is established. Since that condition was not met, the writ petition in its present form was held to be not maintainable and was dismissed.
Before closing, however, the Court issued an important caution to the police. It stated that dismissal of the writ petition should not be treated as any licence to reduce the intensity of investigation. The investigation must continue in accordance with law, with due sensitivity and sincerity.
Why This Judgment Matters
This judgment is significant for families of missing adults who may feel helpless and consider approaching the High Court directly. The Patna High Court has clearly stated that habeas corpus is not the proper remedy unless there is clear proof that the missing person is in illegal custody of a particular individual or authority.
For ordinary citizens, this means that in cases of disappearance, abduction or suspected kidnapping, the first and primary remedy is to lodge an FIR and pursue the criminal investigation. The Court cannot, through habeas corpus, supervise every investigative step unless illegal detention is shown.
At the same time, the judgment sends a strong message to police authorities. They must not file incomplete chargesheets merely to defeat an accused’s right to default bail. Investigations must be serious, sensitive and aimed at finding the truth and tracing missing persons, not just keeping someone behind bars.
For lawyers and litigants in Bihar, the ruling clarifies the limited scope of habeas corpus in missing person cases, and points them towards other possible remedies such as seeking directions for proper investigation through appropriate writs like mandamus, rather than habeas corpus.
Legal Issues and Answers
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Issue: Can a writ of habeas corpus be issued when a missing adult’s illegal confinement by a particular person is not clearly established and the matter is still under police investigation?
Answer: No. The Patna High Court held that illegal confinement is a pre-condition for habeas corpus. Where there is only suspicion and ongoing investigation, and no clear proof of custody with a specific person, a habeas corpus petition is not maintainable. -
Issue: Can the High Court use habeas corpus to control or correct alleged deficiencies in police investigation of a cognizable offence?
Answer: No. The Court held that investigation of a cognizable case lies solely with the police. If there is grievance about inefficient investigation, the proper remedy is a writ of mandamus or other appropriate proceeding, not habeas corpus. -
Issue: Is it proper for the police to file a chargesheet on the basis of an incomplete investigation solely to prevent grant of default bail under Section 167(2) Cr.P.C.?
Answer: The Court disapproved such practice, observing that the chargesheet in this case appeared “half baked” and seemingly intended to frustrate the accused’s right to compulsive bail. Police are duty-bound to carry out a sensitive and committed investigation to its logical end.
Cases Cited by the Court
- Kanu Sanyal v. District Magistrate, Darjeeling & Ors., (1973) 2 SCC 674 – Constitution Bench decision explaining the nature and scope of habeas corpus.
- State v. H. Nilofer Nisha, (2020) 14 SCC 161 – Supreme Court decision on the expanding but limited scope of habeas corpus, emphasising that detention must be without authority of law.
- Madhav Das Agrawal & Anr. v. State of U.P., 2007 (59) All.Cr.Cases 202 – Allahabad High Court decision that FIR and investigation are the proper remedies in kidnapping or abduction cases, and that habeas corpus against private parties needs prima facie proof of illegal custody.
- Halsbury’s Laws of England, 4th Edition, Vol. 11 – for the classical description of the writ of habeas corpus ad subjiciendum.
Case Details
Case Number: Criminal Writ Jurisdiction Case No. 1270 of 2021; arising out of Buddha Colony P.S. Case No. 160 of 2021, District Patna.
Case Title: Sachidanand Sah @ Sachchidanand Sah v. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Ashwani Kumar Singh and Hon’ble Mr. Justice Rajeev Ranjan Prasad.
Citation: 2022(1) PLJR 78.
Advocates: Mr. Sanjay Kumar, Advocate for the petitioner; Mr. Prabhu Narain Sharma, Advocate for the State/respondents.
Nature of the Case: Criminal writ petition under Article 226 of the Constitution of India seeking a writ of habeas corpus.
Date of Judgment: 29.11.2021.
Link to Judgment: Click here to access the official Patna High Court judgment.
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