Safiya Malik

The High Court of Rajasthan, Division Bench of Justice Avneesh Jhingan and Justice Baljinder Singh Sandhu dismissed a habeas corpus petition filed in connection with a missing CRPF constable. The Court held that the extraordinary writ jurisdiction cannot be routinely invoked to monitor or assess the progress of a missing person investigation. Observing that while the scope of habeas corpus has expanded over time, its exercise must remain confined to cases involving illegal detention, the Bench clarified that dissatisfaction with the investigation process does not justify invoking this constitutional remedy, which is reserved for protecting personal liberty.

The petitioner, Smt. Babita, wife of Shri Mukesh, a resident of Jhunjhunu district, approached the Rajasthan High Court through a habeas corpus petition seeking directions for the production of her brother, referred to as the ‘corpus’. The petitioner’s brother, serving as a Constable in the Central Reserve Police Force (CRPF), had proceeded on leave to his native place on 2 March 2025. His medical leave was later extended, and on 9 April 2025, he reportedly left for Greater Noida (Uttar Pradesh) to rejoin duty but failed to do so.

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Subsequently, a Missing Person Report (MPR) was filed by the petitioner on 11 April 2025. The petitioner contended that despite the report, no effective investigation had been undertaken by the authorities. The State, represented by the Government Advocate-cum-Additional Advocate General, submitted a status report dated 23 September 2025 stating that CRPF authorities had declared the corpus an absconder and that arrest warrants had been issued against him. The report further stated that the individual was seen moving freely at Dhaula Kuan Metro Station in New Delhi and later at Tirupati, indicating that there was no illegal detention.

The petitioner’s counsel, Mr. Arun Sharma, argued that the failure to trace the missing person amounted to inaction warranting judicial intervention. However, the State, represented by Mr. Rajesh Choudhary, GA-cum-AAG, and Mr. Manvendra Singh Shekhawat, Dy. GA, opposed the maintainability of the petition, asserting that the matter did not involve any unlawful restraint.

The Bench examined the scope of habeas corpus jurisdiction and referred to several Supreme Court and High Court precedents. The judges stated that "a legal issue arises as to whether a petition in the nature of Habeas Corpus lies where there is no illegal detention, and the sole purpose is to seek supervision of the investigation of an MPR."

Quoting from Kanu Sanyal v. District Magistrate, Darjeeling (1973) 2 SCC 674, the Court observed that “the object of the writ is to secure release of a person who is illegally restrained of his liberty.” It further recorded that “the most characteristic element of the writ is its peremptoriness… the essential and leading theory of the whole procedure is the immediate determination of the right to the applicant’s freedom.”

The Court held that "unlawful detention is the sine qua non for issuance of writ of habeas corpus." Referring to Home Secretary (Prison) v. H. Nilofer Nisha (2020) 40 SCC 161, it stated that “a writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her personal liberty,” but it “will not lie where detention or imprisonment of the person whose release is sought is in accordance with law.”

Citing Union of India v. Yumnam Anand M. (2007) 10 SCC 190, the Court noted that although the writ is a right, “it is not a writ of course. The applicant must show a prima facie case of his unlawful detention.”

The Bench further referred to Sulochana Bai v. State of M.P. (2008) 1 MPLJ 339, in which it was held that “the writ of habeas corpus can only be issued when there is assertion of wrongful confinement” and that missing person complaints do not automatically invoke habeas corpus jurisdiction. The judgment also cited decisions of the Orissa High Court in Nimananda Biswal v. State of Odisha (2023 SCC Online Ori 5628), Madras High Court in Selvaraj v. State (2018 3 MLJ (Criminal) 712), and Chhattisgarh High Court in Jaymati Sahu v. State of Chhattisgarh (2022 SCC Online Chh 737), all holding that missing person cases cannot be treated as habeas corpus matters unless illegal detention is specifically alleged.

The Division Bench recorded: “In the case in hand, there is no pleading or allegation of an illegal detention of the corpus, and one of the basic requisites for writ of Habeas Corpus is of illegal detention. Present is a case where the grievance is against the manner of investigation of MPR.”

The Court clarified the legal recourse available for grievances concerning investigation of missing person reports. Referring to the Supreme Court judgement in Sakiri Vasu v. State of U.P. [(2008) 2 SCC 409], it recorded that “the power to supervise the investigation lies with the Magistrate.” The Bench quoted: “If a person has a grievance that the police station is not registering his FIR under Section 154 Cr.P.C., then he can approach the Superintendent of Police under Section 154(3) Cr.P.C… Even if that does not yield any satisfactory result… it is open to the aggrieved person to file an application under Section 156(3) Cr.P.C. before the learned Magistrate concerned.”

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“The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.” The Court held that the High Court should discourage the practice of filing writ petitions under Article 226 or Section 482 Cr.P.C. merely because of dissatisfaction with police investigation, noting that appropriate remedies lie under the Criminal Procedure Code.

“The writ of Habeas Corpus is to secure release of a person illegally detained either by State or a private individual. A prima facie case of illegal detention has to be made out for invoking the writ of Habeas Corpus.” It further observed that “the writ jurisdiction in the case of a missing person cannot be invoked as a matter of routine to know the status of the investigation or on being dissatisfied with the manner of investigation.”

“No case is made out for invoking writ jurisdiction, the petition is dismissed.”

Advocates Representing the Parties
For the Petitioner: Mr. Arun Sharma, Advocate
For the Respondents: Mr. Rajesh Choudhary, Government Advocate-cum-Additional Advocate General; Mr. Manvendra Singh Shekhawat, Deputy Government Advocate

Case Title: Smt. Babita v. State of Rajasthan & Others
Neutral Citation: 2025: RJ-JP:39433-DB
Case Number: D.B. Habeas Corpus Petition No. 290/2025
Bench: Justice Avneesh Jhingan and Justice Baljinder Singh Sandhu