- The Guwahati High Court has held that missing person cases would not come in the ambit of a habeas corpus petition.
- Such cases must be registered under the ordinary provisions of the Indian Penal Code.
- Justice Kalyan Rai Surana's bench was hearing a habeas corpus petition filed by Mamoni Kakoty, who was seeking a directive to locate her son, Bhaskar Jyoti Kakoty, who had been missing since September 2016.
- According to the petitioner, her missing son was working as a manager for a private company while also running his own business of transporting foodgrains to Food Corporation of India godowns in Manipur.
- Her son had gone out for business on September 4, 2016, she claimed, and never returned.
- The following day, an FIR was filed in the case; however, in October 2018, the Golaghat Police provided a report stating that the case had been referred to the CID Branch, but the missing person could not be located.
- Against this context, it was claimed that even though 5 years had passed and the writ petition had been waiting for more than three years, the State Police could do nothing and was unaware of the missing individual except to send status reports.
- The petitioner's attorney argued that it was the government's job to ensure the security of its residents, and that because the state was unable to guarantee security for her son, the state was obligated to compensate her. It was also claimed that he was being held captive by Manipur fanatics.
- The State argued that compensation can only be granted if the right to life guaranteed by Article 21 of the Indian Constitution was violated by the State or its employees, and that no public law remedy existed to compel the State to pay compensation if a person went missing of his own free will.
- The Court noted that there was no evidence on the record that the petitioner's son had gone missing as a result of any action taken by the State Administration, including the Police, Paramilitary, and Armed Forces.
- The Court considered the fact that there was no evidence that the missing individual was under threat from any militant or extremist groups, and that the State Police had never been asked to offer police protection to the missing person.
- As a result, the Court determined that there was no evidence that the petitioner's child had gone missing as a result of any carelessness on the part of the State Administration.
- The Court emphasised that demonstrating a ground of illegal imprisonment and a strong suspicion of any such illegal detention is a condition precedent for filing a habeas corpus petition, according to Constitutional Courts around the country.
- The Court stated that the basic assumption is that constitutional courts will not hear habeas corpus petitions if there is no allegation of illegal imprisonment or suspicion of illegal custody.
- The court advised the petitioner to approach a competent court of law to seek monetary compensation.
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