The High Court of Gauhati recently ruled that missing persons cases would not fall under habeas corpus (without a strong suspicion of unlawful detention), but such cases must be registered under the ordinary provisions of the Indian Penal Code.
The bench of Judge Kalyan Rai Surana heard a habeas corpus plea filed by a certain Mamoni Kakoty asking that she be ordered to recover her son, namely Bhaskar Jyoti Kakoty, who had been missing since September 2016.
Case in brief
The petitioner claimed that her missing son worked as a manager of a private company and simultaneously operated his own business transporting food grains to the Food Corporation of India stores in the state of Manipur. On 04.09.2016, she said, her son was out on business and never returned.
Subsequently, an FIR was filed in the case the next day, however, in October 2018, a report was submitted by Golaghat Police that the case was referred to the CID Branch but the missing person no. could not be found.
In this context, it was argued that even after 5 years and the Brief Request had been pending for more than three years, but except for the submission of state reports, the state police could do nothing do and had no idea of the missing person.
Counsel for the applicant argued that the onus was on the government to ensure the safety of its citizens and that the State could not ensure the safety of her son and that, therefore, the State was required to pay a compensation. It has also been argued that he could be detained by Manipur extremists.
The State, on the other hand, argued that compensation can only be awarded if the right to life protected by Article 21 of the Constitution of India has been violated by the State or its employees. and also argued that a public law remedy was not available to order the State to pay compensation if a person is voluntarily reported missing
Observations of the Court
Publishing the facts of the case, the Court noted that there was no evidence on file to suggest that the applicant’s son had disappeared after any action taken by the state administration, including the police, paramilitary and armed forces.
The Court also took into account the fact that there was no evidence that the missing person had a perception of threat from militant or extremist groups and that the state police had never been called upon to. provide police protection to the missing person.
Therefore, the Court ruled that there was no evidence that the applicant’s son had disappeared due to any negligence on the part of the state administration police.
In this context, the Court referred to the case of Selvaraj vs. State, HCP 2309/2016, to note that in this case, the Madras Hospital Center had ruled that a habeas corpus request would not be admissible in cases of missing persons and that it would only be admissible if the personal life and liberty guaranteed by Article 21 are violated by the State or by any individual .
In addition, the Court emphasized that constitutional courts across the country have held that establishing a ground for unlawful detention and a strong suspicion of such unlawful detention is a prerequisite for the filing of a habeas corpus request.
Thus, the Court further considered that the legal proposition would be that Constitutional Courts would not consider habeas corpus petitions where there is no allegation of unlawful detention or suspicion of unlawful detention.
Finally, rejecting the present habeas corpus plea, the Court stated as follows:
“As stated in this case, no apprehension of kidnapping or unlawful detention was raised when the FIR was filed and at no time to date have any witnesses interviewed by the police so far. present expressed concern that the applicant’s son had not been kidnapped by anyone, including extremists. Accordingly, there is no doubt that the applicant’s son was unlawfully detained, this habeas corpus application is dismissed.D.”
However, the Court advised the applicant to apply to a competent Court of Justice to seek pecuniary compensation, the application for which, according to the Court’s decision, will be decided on its own merits without being influenced by the observations made in this case.
Case title – Mamoni Kakoty v. The State of Assam and 6 Ors.
Click here to download the order