Mr. Sidhartha Sankar Ray (2), Advocate -Versus- State Of Odisha & Ors. v. State of Odisha & Ors.

Mr. Sidhartha Sankar Ray (2), Advocate -Versus- State Of Odisha & Ors. …. Opposite Parties Ms. Aishwarya Dash, ASC CORAM: HON’ BLE THE CHIEF JUSTICE AND HON’BLE MR. JUSTICE CHITTARANJAN DASH Order No. ORDER 27.07.2026

Heard learned counsel for both the parties.

At the outset, learned Additional Standing Counsel (ASC) raises a preliminary objection as to the maintainability of the present Writ Petition in the nature of a writ of habeas corpus, contending that such a petition is not maintainable for tracing a missing person. She further submits, on the basis of instructions received from the concerned authorities, that the facts of the present case also support the said preliminary objection.

Admittedly, the complaint lodged by the Petitioner was registered as a missing person case, although the Petitioner has expressed a suspicion that the girl had been kidnapped. It is alleged that no effective investigation has been undertaken by the Police Authorities and that, consequently, the Petitioner's daughter has remained untraceable. It is also an admitted position that the girl had attained the age of majority at the time of the alleged incident.

Since this is not a case involving the kidnapping of a minor girl, this Court would ordinarily be inclined to dismiss the present Writ Petition on the preliminary objection, particularly when the pleadings disclose that the grievance essentially pertains to a missing person.

A Coordinate Bench of this Court, in Nimananda Biswal v. State of Odisha & Ors., reported in 2023 SCC OnLine Ori 5628, has categorically held that the extraordinary jurisdiction under Article 226 of the Constitution, in the nature of a writ of habeas corpus, cannot be invoked for tracing a missing person or for directing an investigating agency to conduct an investigation under the provisions of the Code of Criminal Procedure, now the Bharatiya Nagarik Suraksha Sanhita (BNSS). The relevant observations are reproduced below: “9. In the case of Samir Kumar Paul v. State, 2004 SCC Online Cal 117, a Division Bench of the Calcutta High Court that where prayer was made by the father of a ten years old missing girl for issuance of a writ of habeas corpus for tracing out the girl, it was held that in a habeas corpus proceeding the Court is required to consider the legality or otherwise of the detention of a particular person and since such a situation was not involved in the case, writ in the nature of habeas corpus cannot be issued as prayed for. Accordingly, it was held that the writ petition is not maintainable.

10. Writ of habeas corpus cannot be issued in a casual and routine manner. Though it is a writ of right, it is not a writ of course. The writ of habeas corpus is festinum remedium and power can be exercised in clear case. Illegal confinement is a pre-condition to issue a writ of habeas corpus. It cannot be issued in respect of any and every missing person more so when no named person is alleged to be responsible for the ‘illegal detention’ of the person for whose production before the Court, a writ is to be issued. On the basis of a habeas corpus petition, the power under Article 226 of the Constitution of India is not to be exercised for tracing a missing person engaging an investigating agency empowered to investigate a case under Cr.P.C.

11. In this case, the petitioner has not established a prima facie case of ‘unlawful detention’ of his daughter by any particular person, rather it is submitted on his behalf that his daughter has been missing. Therefore, we are of the considered view that a petition seeking the issuance of the writ of habeas corpus cannot be entertained to trace out a missing person and for such purpose, the petitioner can pursue other effective remedy.”

In view of the law laid down in the aforesaid decision, this Court has no hesitation in holding that a writ petition in the nature of habeas corpus is not maintainable merely for tracing a missing person. Ordinarily, the matter would have ended there. However, this Court cannot overlook the instructions placed before it by the learned Additional Standing Counsel. The instructions disclose that the girl has since married a person of her choice and is presently residing with him in another State for their livelihood. Since she is a major and competent to make decisions regarding her personal life, this Court does not consider it necessary to direct her production before this Court merely because the present petition has been filed by her brother.