Writ of habeas corpus not maintainable if no allegation of unlawful detention in missing person report held in Rajasthan HC

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The Court noted that the petitioner had previously filed a missing person report on September 3, 2022 and that there was no allegation of unlawful detention in the missing person report. Therefore, the proper avenue available to the petitioner was to approach the relevant magistrate, therefore, the Court was not inclined to consider the instantaneous habeas corpus petition.

The Rajasthan High Court on September 28, 2022 ruled that as there was no allegation of unlawful detention in the missing person’s report of the petitioner’s minor daughter, the writ of habeas corpus was not admissible.

The bench of Justices Pankaj Bhandari and Sameer Jain heard a habeas corpus petition brought by the father of a missing minor girl.

Petitions in brief are filed under 226 of the Constitution of India which states that:-

(1) Notwithstanding anything in section 32, each High Court shall have power in all the territories over which it has jurisdiction to issue to any person or authority, including, in appropriate cases, any government, in such territories, any instructions, orders or writs, including writs of the nature of habeas corpus, mandamus, interdicts, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any government, authority or person may also be exercised by any High Court exercising jurisdiction over the territories in which the cause of action, in whole or in part, arises out of the exercise of such power, notwithstanding that the seat of such government or authority or the residence of such person is not in such territories

(3) Where a party against whom an interim order, whether by way of injunction or stay or otherwise, is made on, or in any proceeding relating to, an application under subsection (1) , without

(a) provide such party with copies of such motion and any documents in support of the request for such interim order; and

(b) give that party an opportunity to be heard, make an application to the High Court for the setting aside of that order and deliver a copy of that application to the party in whose favor that order was made or to the counsel for that party, the High Court shall decide the petition within two weeks from the date of its receipt or from the date on which the copy of such petition is so furnished, whichever is later, or when the High Court is closed on the last day of that period, before the expiry of the day following the opening of the High Court; and if it is not so ruled on the request, the interim order is, at the end of this period or, as the case may be, at the end of the aid the next day, maintained canceled

(4) The power conferred on a High Court by this section shall not derogate from the power conferred on the Supreme Court by subsection (2) of section 32.

The Court noted that the petitioner had previously filed a missing person report on September 3, 2022 and that there was no allegation of unlawful detention in the missing person report. Therefore, the proper avenue available to the petitioner was to approach the relevant magistrate, therefore, the Court was not inclined to consider the instantaneous habeas corpus petition.

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