Patna High Court
Kanchan DeviversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- JITENDRA KUMAR
Holding
The writ petition is dismissed, directing the petitioner to move an application before the jurisdictional magistrate for further investigation to recover the missing child.
Summary
The petitioner, Kanchan Devi, filed a writ petition under Article 226 seeking the recovery of her 13‑year‑old kidnapped daughter, alleging that the police had not taken adequate steps to locate the child despite a charge‑sheet being filed. The State argued that despite best efforts the victim remained missing, while the petitioner contended that further investigative measures were still possible. The Court examined whether a habeas‑corpus writ is maintainable where there is no prima‑facie allegation of illegal detention and whether the petitioner must first approach a jurisdictional magistrate under Section 97 of the Criminal Procedure Code for a search warrant. Relying on a series of precedents that restrict habeas‑corpus relief in missing‑person cases and emphasizing the availability of alternative statutory remedies, the Court held that the writ petition could not be entertained for the purpose of locating the victim. Accordingly, the petition was disposed with liberty granted to the petitioner to file an appropriate application before the competent magistrate to ensure proper investigation and recovery of the child.
Issues considered
- Whether a writ of habeas corpus under Article 226 is maintainable when the missing person case does not demonstrate a prima facie illegal detention.
- Whether the petitioner must first seek a search warrant and investigation direction from a jurisdictional magistrate under Section 97 CrPC.
- Whether the existence of an efficacious alternative remedy bars the High Court from entertaining the writ petition.
Legislation cited
- B.N.S.S. — s. 100
- Constitution of India — s. Article 226
- Criminal Procedure Code — s. 97, 98
- Indian Penal Code — s. 363, 366-A
Subjects
- habeas corpus
- missing person
- kidnapping
- Section 97 CrPC
- Article 226
- alternative remedy
- writ petition
- investigation
- victim recovery
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1625 of 2024
Arising Out of PS. Case No.-9 Year-2024 Thana- DANAPUR District- Patna
======================================================
Kanchan Devi W/O Late Raj Kumar Paswan R/O Sultanpur,Near Shiv
Mandir,PS-Danapur,Distt-Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. The Secretary, Dept. of Home and Police, Bihar, Patna
3. The Director General of Police, Bihar, Patna
4. The Senior Superintendent of Police, Bihar, Patna
5. The Sub Divisional Police Officer, Danapur, Patna
6. The Officer Incharge, Danapur Police Station, Danapur, Patna
7. A.S.I. Investigation Officer, Danapur P.S., Danapur, Patna
8. Sadhana Devi W/O Late Ajay Paswan R/O Sultanpur Bhattha Par,Near Shiv
Mandir,PS-Danapur,Distt-Patna
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Anuj Dilbar Krishna, Advocate
For the State : Mr. Nagendra Prasad, S.C.-23
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL JUDGMENT
Date : 02-07-2026
The present petition has been preferred by the
petitioner seeking proper investigation in the subject FIR
bearing Danapur P.S. Case No. 9 of 2024 dated 02.01.2024,
registered for the offences punishable under Sections 363 and
366-A of the Indian Penal Code and recovery of the victim of
offence of kidnapping, who is a 13 years old girl.
2. It is informed by learned counsel for the petitioner
at bar that in this case, charge-sheet has been submitted and trial
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bearing Sessions Trial No. 1991 of 2025 is going on, pending in
the Sessions Court, Danapur, Patna. However, the victim-girl is
still not recovered by the police.
3. Learned counsel for the State submits that despite
best efforts, the police could not recover the victim-girl so far.
4. However, learned counsel for the petitioner submits
that there is still scope of recovery, because the required steps
have not been taken by the police to recover the victim-girl.
5. Now question is whether such writ petition should
be entertained by this Court or the petitioner should be given
liberty to move an appropriate application before Jurisdictional
Magistrate for further investigation to ensure the recovery of the
victim-girl.
6. Here, it would be pertinent to mention that Section
97 Cr.PC/Section 100 B.N.S.S. which empowers the Judicial
Magistrate to issue search warrant to recover any person if he
has reason to believe that such person is confined under such
circumstances that the confinement amounts to an offence and if
the person is recovered, he shall be immediately taken before a
Magistrate.
7. Search and recovery of the victim of any offence is
part of investigation and police is duty bound to do proper
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investigation, if required. The Jurisdictional Magistrate can
issue search warrant for recovery of the victim and he can even
monitor the efforts being taken by the police to search and
recover the victim.
8. In Showkat Ahmad Mir vs. Nighat Begum case,
High Court of Jammu and Kashmir and Ladakh at Srinagar
in Case No. CRM(M) No. 240 of 2022, has held as follows:-
"8) A perusal of the aforesaid provision reveals that a
Magistrate of the first class is vested with power to issue a
search warrant in respect of a person who is confined
under such circumstances that his/her confinement
amounts to an offence. After the production of confined
person before the Magistrate, an order, as is deemed
proper by the Magistrate in the circumstances, has to be
passed.
9) Thus, two things are essential before a Magistrate can
issue a search warrant under Section 97 of Cr. P. C; one is
that a person should be confined and second is that the
confinement of such person should amount to an offence."
(Emphasis supplied)
9. In Jaishree v. State of U.P., (2024 SCC OnLine
All 162), High Court of Allahabad has held as follows:-
"9. The power to direct search for persons wrongfully
confined is provided under Section 97 of the Criminal
Procedure Code, 1973 whereas Section 98 provides the
procedure to compel restoration of abducted females. In a
situation where the husband seeks to assert that the wife,
without reasonable cause, is refusing to return to her
matrimonial home, it would be open for him to seek the
remedy of restitution of conjugal rights under Section 9 of
the Hindu Marriage Act, 1955. The recourse to the latter
remedy may be sought where the detention does not
amount to an offence and to the former if it does. While
invoking either of these remedies, all the issues relating to
facts can be agitated and examined, whereas a writ of
habeas corpus may not be issued where facts are disputed
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or are not clearly established.
10. The exercise of the extraordinary jurisdiction for
issuance of writ of habeas corpus would be dependent on
the jurisdictional fact where the petitioner establishes a
prima facie case that the detention is unlawful, which
apparently is not demonstrated from the facts which are on
record in the present case.
11. In view of the other remedies available for the
purpose, under criminal and civil law, exigence of a writ
of habeas corpus at the behest of a husband to regain his
wife would be rare and may not be available as a matter of
course and the power in this regard may be exercised only
when a clear case is made out."
(Emphasis supplied)
10. Here, it would also profitable to refer to some
judgments delivered by some High Courts where victims were
missing but there was no allegation of any illegal confinement.
Here, the High Courts have held that in such circumstances, the
writ of habeas corpus is not maintainable and such missing
cases are required to be registered under penal provisions as
well as Code of Criminal Procedure to be dealt with as regular
cases by the competent Court of Law and the extraordinary
jurisdiction of Constitutional Courts cannot be invoked for the
purpose of dealing with such cases.
11. In Selvaraj v. State, (2018 SCC OnLine Mad
14215), High Court of Madras has held as follows:-
"13. The Courts are frequently witnessing that
Man/Women Missing cases are mostly converted as
Habeas Corpus Petitions under Article 226 of the
Constitution of India. Mainly, two aspects are to be
considered in such cases. Right of every citizen for free
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movement is also enshrined in Part III of the Constitution
as a fundamental right. Personal liberty means that any
person on attaining the age of majority is at liberty to
move to a place of his choice. It is not necessary that a
person has to inform each and every one of his desire or
decision to his kith and kin or to the other persons. Way of
life is also a part of personal liberty and a citizen of this
Country shall choose a path or way of his own choice for
leading his life as per his own mind set and wishes.
Merely because a person was not found in his usual
dwelling place, that does not mean that always an element
of “illegal detention” is involved. For establishing an
“illegal detention”, it is necessary that substantial
materials are to be furnished by the person, who
approaches the Courts by filing Habeas Corpus Petitions.
Thus, the personal liberty includes free movement of a
citizen of his own choice and no other person has got any
right to interfere with the right of a person to move freely
anywhere at his own choice. A Man/Women voluntarily
moving from their dwelling house to any other place of
his/her own choice, then his/her family members or other
person concerned with such a person can file a case for
Man missing and on receipt of any such complaint, the
Police having jurisdiction has to investigate the matter in
the manner known to law. Under these circumstances,
question of entertaining a Habeas Corpus Petition by the
High Courts would not arise at all. Thus, it is a condition
precedent that a person filing a Habeas Corpus Petition
should establish that there is a prima facie case of “illegal
detention” or atleast a strong and reliable suspicion in
respect of such “illegal detention”. In the absence of any
of these illegal ingredients, no Habeas Corpus petition can
be entertained under Article 226 of the Constitution of
India.
..............................................................................................
20. The constitutional Courts across the country
predominantly held in catena of judgments that
establishing a ground of “illegal detention” and a strong
suspicion about any such “illegal detention” is a condition
precedent for moving a Habeas Corpus petition and the
Constitutional Courts shall be restrained in entertaining
such Habeas Corpus petition, where there is no allegation
of “illegal detention” or suspicion about any such “illegal
detention”. Man/Women missing cases cannot be brought
under the provision of the Habeas Corpus petition.
Man/Women missing cases are to be registered under the
regular provisions of the Penal Code, 1860 and the Police
officials concerned are bound to investigate the same in
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the manner prescribed under the Code of Criminal
Procedure. Such cases are to be dealt as regular cases by
the competent Court of Law and the extraordinary
jurisdiction of the Constitutional Courts cannot be invoked
for the purpose of dealing with such Man/Women Missing
cases "
(Emphasis supplied)
12. In Mamonikakoty v. State of Assam, (2021 SCC
OnLine Gau 2584), Gauhati High Court has held as follows:-
"15. On overall consideration of the cases referred herein
before, it appears that the Constitutional Courts across the
Country have held that establishing a ground of illegal
detention and a strong suspicion about any such illegal
detention is a condition precedent for moving a habeas
corpus petition. Thus, the legal proposition would be that
the Constitutional Courts would not entertain habeas
corpus petitions where there is no allegation of illegal
detention or suspicion regarding illegal detention. Thus,
missing person cases would not come within the ambit of
a habeas corpus petition, but such cases are required to be
registered under the regular provisions of the Penal Code,
1860 and the police and other investigating agencies
would investigate the same in the manner prescribed
under the Code of Criminal Procedure. "
(Emphasis supplied)
13. In Jaymati Sahu v. State of Chhattisgarh, (2022
SCC OnLine Chh 737), High Court of Chhattisgarh at Bilaspur
has held as follows:-
"14. Thus, the constitutional Courts across the country
predominantly held in catena of judgments that
establishing a ground of “illegal detention” and a strong
suspicion about any such “illegal detention” is a condition
precedent for moving a Habeas Corpus petition and the
Constitutional Courts shall not entertain a Habeas Corpus
petition, where there is no allegation of “illegal detention”
or suspicion about any such “illegal detention”. Cases of
missing persons cannot be brought under the provision of
the Habeas Corpus petition. Cases of missing persons are
to be registered under the regular provisions of the Penal
Code, 1860 and the Police officials concerned are bound
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to investigate the same in the manner prescribed under the
Code of Criminal Procedure. Such cases are to be dealt as
regular cases by the competent Court of Law and the
extraordinary jurisdiction of the Constitutional Courts
cannot be invoked for the purpose of dealing with such
cases of missing persons.
15. It is seen in the instant case that the petitioner has not
made any averment in the entire writ petition that her
daughter Juhi Sahu has been illegally detained either by
the official respondents or by the respondent No. 7.
Averrment made in the writ petition, as a whole, do not
disclose the illegal detention of Juhi Sahu by private or
official respondents. The petitioner only apprehends that
the respondent No. 7 and his family members might have
murdered Juhi Sahu. As such, unlawful detention of the
petitioner's daughter, either by private person or
custody/control/detention by the respondents is not
pleaded, established or urged before this Court, only
apprehension of alleged criminal act by respondent No. 7
and his family members has been expressed. As already
observed in the above-stated paragraphs, a writ of habeas
corpus is not to be issued as a matter of course and clear
grounds must be made out for issuance of a writ of habeas
corpus. In the instant case, the petitioner has miserably
failed to plead and establish the necessary ingredients for
issuance of the writ of habeas corpus and as such, the
extraordinary writ cannot be issued at the instance of the
petitioner for production of a missing person, as it is the
case of the petitioner herself that her daughter is missing
since 10-2-2019."
(Emphasis supplied)
14. In Nimananda Biswal v. State of Odisha, (2023
SCC OnLine Ori 5628), High Court of Orissa at Cuttack
has held as follows:-
"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
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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."
(Emphasis supplied)
15. In Simmi Bai v. State, (2025 SCC OnLine MP
893), High Court of Madhya Pradesh has held as follows:-
"16. Cases of missing persons cannot be brought under
the provision of the Habeas Corpus petition. Cases of
missing persons are to be registered under the regular
provisions of the Penal Code, 1860 and the Police officials
concerned are bound to investigate the same in the manner
prescribed under the Code of Criminal Procedure. Such
cases are to be dealt as regular cases by the competent
Court of law and the extraordinary jurisdiction of the
Constitutional Courts cannot be invoked for the purpose
of dealing with such cases of missing persons. Thus, the
constitutional Courts across the country predominantly
held in catena of judgments that establishing a ground of
“illegal detention” and a strong suspicion about any such
“illegal detention” is a condition precedent for moving a
habeas corpus petition and the constitutional Courts shall
not entertain a habeas corpus petition, where there is no
allegation of “illegal detention” or suspicion about any
such “illegal detention”.
(Emphasis supplied)
16. In Babita v. State of Rajasthan, (2025 SCC
OnLine Raj 5227), High Court of Rajasthan has held as
follows:-
"13. The writ of Habeas Corpus is to secure release of
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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. The
scope of Habeas : orpus has been enlarged with time, but
there cannot be traitjacket formula for interference in writ
in the nature of habeas Corpus. It is a trite law that in
ordinary course the high court should not interfere in writ
jurisdiction, if there is an alternative remedy available. 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. Criminal procedure law provides remedies
for supervision of investigation and if required, for
issuance of direction for effective investigation and such
matters are to be dealt with by the competent court of law."
(Emphasis supplied)
Availability of Efficacious Alternative Remedy And
Entertainaibility/Maintainability of Writ Petition Under
Article 226 Of The Constitution.
17. Now question arises, whether the writ petition is
maintainable in view of the availability of the efficacious
alternative remedy to the Petitioner. Here, it may be pointed out
that maintainability and entertainability of a writ petition are
distinct concepts. The objection as to maintainability goes to the
root of the matter and if such objection is found to be of
substance, the Court is rendered incapable of even receiving the
lis for adjudication. However, the question of entertainability is
entirely within the realm of discretion of the High Court, as writ
remedy is discretionary. Writ Petition, despite being
maintainable may be not entertained by a High Court for many
reasons or relief could even be refused to the Petitioner, despite
setting up a sound legal point, if grant of the claimed relief
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would not further public interest. It may be further pointed out
that availability of efficacious alternative remedy is not an
absolute bar to maintainability of a writ petition. However, the
Court can still refuse to entertain the writ petition, if the
Petitioner has efficacious alternative remedy as held by Hon’ble
Supreme Court in Godrej Sara Lee Ltd. Vs. Excise and
Taxation Officer-cum-Assessing Authority and Others as
reported in (2023) SCC OnLine SC 95. Relevant paragraph of
the judgment reads as follows:
“4. Before answering the questions, we feel the urge
to say a few words on the exercise of writ powers
conferred by article 226 of the Constitution having come
across certain orders passed by the High Courts holding
writ petitions as "not maintainable" merely because the
alternative remedy provided by the relevant statutes has
not been pursued by the parties desirous of invocation of
the writ jurisdiction. The power to issue prerogative writs
under article 226 is plenary in nature. Any limitation on
the exercise of such power must be traceable in the
Constitution itself. Profitable reference in this regard may
be made to article 329 and ordainments of other similarly
worded articles in the Constitution. Article 226 does not,
in terms, impose any limitation or restraint on the exercise
of power to issue writs. While it is true that exercise of
writ powers despite availability of a remedy under the
very statute which has been invoked and has given rise to
the action impugned in the writ petition ought not to be
made in a routine manner, yet, the mere fact that the
petitioner before the High Court, in a given case, has not
pursued the alternative remedy available to him/it cannot
mechanically be construed as a ground for its dismissal. It
is axiomatic that the High Courts (bearing in mind the
facts of each particular case) have a discretion whether to
entertain a writ petition or not. One of the self-imposed
restrictions on the exercise of power under article 226 that
has evolved through judicial precedents is that the High
Courts should normally not entertain a writ petition, where
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an effective and efficacious alternative remedy is
available. At the same time, it must be remembered that
mere availability of an alternative remedy of appeal or
revision, which the party invoking the jurisdiction of the
High Court under article 226 has not pursued, would not
oust the jurisdiction of the High Court and render a writ
petition "not maintainable". In a long line of decisions,
this court has made it clear that availability of an
alternative remedy does not operate as an absolute bar to
the "maintainability" of a writ petition and that the rule,
which requires a party to pursue the alternative remedy
provided by a statute, is a rule of policy, convenience and
discretion rather than a rule of law. Though elementary, it
needs to be restated that "entertainability" and
"maintainability" of a writ petition are distinct concepts.
The fine but real distinction between the two ought not to
be lost sight of. The objection as to "maintainability" goes
to the root of the matter and if such objection were found
to be of substance, the courts would be rendered incapable
of even receiving the lis for adjudication. On the other
hand, the question of "entertainability" is entirely within
the realm of discretion of the High Courts, writ remedy
being discretionary. A writ petition despite being
maintainable may not be entertained by a High Court for
very many reasons or relief could even be refused to the
petitioner, despite setting up a sound legal point, if grant
of the claimed relief would not further public interest.
Hence, dismissal of a writ petition by a High Court on the
ground that the petitioner has not availed the alternative
remedy without, however, examining whether an
exceptional case has been made out for such entertainment
would not be proper.
(Emphasis supplied)
18. It has been also held by Hon’ble Supreme Court in
Whirlpool Corporation Vs. Registrar of Trade Marks,
Mumbai and Ors. as reported in (1998) 8 SCC 1 that power to
issue prerogative writs under Article 226 of the Constitution is
plenary in nature and is not limited by any other provision of the
Constitution. The High Court has discretion to entertain or not
to entertain a writ petition and the High Court has imposed upon
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itself certain restrictions, one of which is that if an effective and
efficacious alternative remedy is available to the Petitioner, the
High Court would not normally exercise its jurisdiction.
However, this restriction is not an absolute bar to
maintainability of the writ petition. The High Court can
entertain the writ petition in the following three contingencies,
namely the writ petition has been filed for enforcement of any
of the Fundamental Rights or where there has been any violation
of Principle of Natural Justice or where the order or proceedings
are wholly without jurisdiction or the vires of an Act is
challenged. The relevant paragraph of the judgments reads as
follows:
“14. The power to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and is
not limited by any other provision of the Constitution.
This power can be exercised by the High Court not only
for issuing writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari for
the enforcement of any of the Fundamental Rights
contained in Part III of the Constitution but also for “any
other purpose”.
15. Under Article 226 of the Constitution, the High
Court, having regard to the facts of the case, has a
discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain
restrictions one of which is that if an effective and
efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative
remedy has been consistently held by this Court not to
operate as a bar in at least three contingencies, namely,
where the writ petition has been filed for the enforcement
of any of the Fundamental Rights or where there has been
a violation of the principle of natural justice or where the
order or proceedings are wholly without jurisdiction or the
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vires of an Act is challenged. There is a plethora of case-
law on this point but to cut down this circle of forensic
whirlpool, we would rely on some old decisions of the
evolutionary era of the constitutional law as they still hold
the field.”
(Emphasis supplied)
19. In Radha Krishan Industries vs. State of
Himachal Pradesh and Others as reported in (2021) 6 SCC
771, Hon’ble Supreme Court has further held as follows after
referring to relevant Judicial precedents:
“27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution
to issue writs can be exercised not only for the
enforcement of fundamental rights, but for any other
purpose as well.
27.2. The High Court has the discretion not to
entertain a writ petition. One of the restrictions placed on
the power of the High Court is where an effective alternate
remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternate remedy arise
where : (a) the writ petition has been filed for the
enforcement of a fundamental right protected by Part III
of the Constitution; (b) there has been a violation of the
principles of natural justice; (c) the order or proceedings
are wholly without jurisdiction; or (d) the vires of a
legislation is challenged.
27.4. An alternate remedy by itself does not divest
the High Court of its powers under Article 226 of the
Constitution in an appropriate case though ordinarily, a
writ petition should not be entertained when an efficacious
alternate remedy is provided by law.
27.5. When a right is created by a statute, which itself
prescribes the remedy or procedure for enforcing the right
or liability, resort must be had to that particular statutory
remedy before invoking the discretionary remedy under
Article 226 of the Constitution. This rule of exhaustion of
statutory remedies is a rule of policy, convenience and
discretion.
27.6. In cases where there are disputed questions of
fact, the High Court may decide to decline jurisdiction in a
writ petition. However, if the High Court is objectively of
the view that the nature of the controversy requires the
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exercise of its writ jurisdiction, such a view would not
readily be interfered with.
28. These principles have been consistently upheld
by this Court in Chand Ratan v. Durga Prasad, (2003) 5
SCC 399, Babubhai Muljibhai Patel v. Nandlal Khodidas
Barot, (1974) 2 SCC 706] and Rajasthan SEB v. Union of
India, (2008) 5 SCC 632] among other decisions.”
Present Case
20. Coming to the case on hand, I find that the victim-
girl of the alleged offence is still traceless and the police has not
been able to recover her. However, the petitioner is showing
some scope for taking further steps to recover the victim-girl.
21. Under such facts and circumstances, it would be
desirable for the petitioner to move an appropriate application
for proper and further investigation to ensure that the police
makes its best efforts to recover the victim-girl.
22. Accordingly, the present writ petition is disposed
of with liberty to the petitioner to move an appropriate
application before Jurisdictional Magistrate. In case, such
application is moved, the concerned Magistrate is duty bound to
pass order as per law, monitoring further investigation.
(Jitendra Kumar, J)
shoaib/-
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Uploading Date 03.07.2026.
Transmission Date 03.07.2026.
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