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Patna High Court

Mithilesh Kumar DwivedyversusThe State of Bihar through the Principal Secretary of Home Department, Bihar, Patna.

Decided
Disposal
DISPOSED

Holding

A writ of habeas corpus cannot be issued where an effective statutory remedy under Section 101 of the Bharatiya Nagarik Suraksha Sanhita, 2023 is available.

Summary

Mithilesh Kumar Dwivedy filed a criminal writ petition seeking a writ of habeas corpus for the release of his minor daughter allegedly kidnapped by private respondents No.7‑12, alleging police inaction. The Court examined whether a writ of habeas corpus is appropriate when an effective statutory remedy exists. Citing Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, the Court reiterated that habeas corpus is an extraordinary remedy usable only when ordinary legal remedies are unavailable or ineffective. It held that the petitioner could avail the remedy under Section 101 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which empowers magistrates to order the restoration of abducted females. Consequently, the petition was disposed without expressing any view on the merits, and the Court directed the authorities to pursue recovery under the statutory provision.

Issues considered

  • Whether the petitioner is entitled to a writ of habeas corpus for the recovery of his minor daughter.
  • Whether the availability of an effective statutory remedy under Section 101 of the Bharatiya Nagarik Suraksha Sanhita, 2023 precludes the issuance of a writ of habeas corpus.
  • Whether police inaction constitutes a ground for granting the writ.

Legislation cited

Subjects

  • habeas corpus
  • kidnapping
  • minor child
  • statutory remedy
  • Section 101
  • BNSS 2023
  • police inaction
  • criminal writ

Judgment

                     IN THE HIGH COURT OF JUDICATURE AT PATNA
                               Criminal Writ Jurisdiction Case No.504 of 2026
                   Arising Out of PS. Case No.-73 Year-2025 Thana- Jai Bajrang District- East Champaran
                 ======================================================
                 Mithilesh Kumar Dwivedy S/O Nand Kishore Dwivedy R/O Village- Parsoni
                 Devajeet, P.S.- Jaybajrang Partapur, District- East Champaran

                                                                                     ... ... Petitioner/s
                                                 Versus
           1.    The State of Bihar through the Principal Secretary of Home Department,
                 Bihar, Patna. Patna
           2.    The Director General of Police, Patel Bhawan, Patna. Bihar
           3.    The Superintendent of Police, East Champaran.
           4.    The Dy. S.P., East Champaran. Bihar
           5.    The Station House Officer, Jaibajrang Police Station, East Champaran. Bihar
           6.    The Investigation Officer, Police Station- Jaibajrang, East Champaran. Bihar
           7.    Arun Patel @ Chutu Patel Son of Late Radhika Rai Resident of Village-
                 Thikaha Asavari Banjariya, P.S.- Kathaiya, District- Muzaffarpur.
           8.    Younger Brother of Arun Patel @ Chutu Patel (Name not known), Son of
                 Late Radhika Rai Resident of Village- Thikaha Asavari Banjariya, P.S.-
                 Kathaiya, District- Muzaffarpur.
           9.    Golu Devi Wife of Anil Patel Resident of Village- Asavari Banjariya, P.S.-
                 Kathaiya, District- Muzaffarpur.
           10. Abhishek Kumar Son of Late Pappu Rai. Resident of Village- Parsoni
               Devajeet, P.S.- Jaibajrang Partapur, District- East Champaran.
           11. Beauty Kumari Daughter of Late Pappu Rai. Resident of Village- Parsoni
               Devajeet, P.S.- Jaibajrang Partapur, District- East Champaran.
           12. Kanti Devi Wife of Late Pappu Rai. Resident of Village- Parsoni Devajeet,
               P.S.- Jaibajrang Partapur, District- East Champaran.

                                                           ... ... Respondent/s
                 ======================================================
                 Appearance :
                 For the Petitioner/s     :        Mr. Krishna Kant Singh, Advocate
                 For the Respondent/s     :        Mr. P.K. Shahi, A.G.
                 ======================================================
                 CORAM: HONOURABLE MR. JUSTICE SUDHIR SINGH
                         and
                         HONOURABLE MR. JUSTICE SHAILENDRA SINGH
                                       ORAL ORDER

                 (Per: HONOURABLE MR. JUSTICE SUDHIR SINGH)

2   18-03-2026                     Heard learned counsel for the parties.

                                2. The following relief has been sought in the present
Patna High Court CR. WJC No.504 of 2026(2) dt.18-03-2026
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          criminal writ petition:

                          “ (i) For that the instant writ application is being
                          filed in to get the minor daughter of the petitioner
                          released from the illegal custody of the private
                          respondents No.7 to 12 who have kidnapped the
                          minor daughter of the petitioner namely ‘X’ and
                          inspite of giving all information the official
                          respondent have not taken any step to rescue/
                          recover the minor daughter of the petitioner and
                          have also not taken any action against private
                          respondents and to ensure fair and proper
                          investigation.”
                          (ii)   For    issuance     of    any   other   writ/writs,
                          direction/directions to the respondents authorities
                          to grant the relief/reliefs to the petitioner for which
                          he is found to entitled.”


                       3. Considering the facts of the case and the materials

          available on record, and in view of the settled legal position that

          a writ of Habeas Corpus is an extraordinary and discretionary

          remedy which may not be exercised where an effective statutory

          remedy is available, reliance can be placed upon Tejaswini

          Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42,

          wherein the Hon'ble Supreme Court has in para 19 observed the

          following:

                          "19. Habeas corpus is a prerogative writ which is
                          an extraordinary remedy and the writ is issued
                          where in the circumstances of the particular case,
Patna High Court CR. WJC No.504 of 2026(2) dt.18-03-2026
                                            3/4




                          ordinary remedy provided by the law is either not
                          available or is ineffective, otherwise a writ will not
                          be issued….”


                       4. Accordingly, the petitioner is granted liberty to

          avail the appropriate/alternate statutory remedy by filing an

          application under Section 101 of the Bharatiya Nagarik

          Suraksha Sanhita, 2023, which reads as follows:-

                          "101. Power to compel restoration of abducted
                          females - Upon complaint made on oath of the
                          abduction or unlawful detention of a woman, or a
                          female child for any unlawful purpose, a District
                          Magistrate,       Sub-divisional   Magistrate      or
                          Magistrate of the first class may make an order for
                          the immediate restoration of such woman to her
                          liberty, or of such female child to her parent,
                          guardian or other person having the lawful charge
                          of such child, and may compel compliance with
                          such order, using such force as may be necessary.”


                       5. With the aforesaid liberty, the present writ petition

          stands disposed of.

                       6. It is clarified that this Court has not expressed any

          opinion on the merits of this case.

                       7. Pending application(s), if any, shall also stand

          disposed of.

                       8. It is further expected that the concerned authorities

          shall pursue the matter in accordance with Section 101 of the
            Patna High Court CR. WJC No.504 of 2026(2) dt.18-03-2026
                                                        4/4




                      BNSS, 2023 and make all possible efforts to ensure the recovery

                      of the minor child at the earliest.



                                                  (Sudhir Singh, J)


                                                (Shailendra Singh, J)
Anushka/-

U


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