Mahendra Sharma vs State of Bihar and Others

This petition has been filed as a habeas corpus petition. The counsel who presented the petition is not present. It appears that there is no sufficient interest to pursue the matter. Habeas corpus petitions normally do not get dismissed on the principle that once an illegal detention (alleged) has been intimated to the sovereign or to a court of law, the obligation of the informer is over and thereafter, the object of securing the liberty of a person detained is upon the Court. In the circumstances, the question is debatable whether the petition can be dismissed for default or for non-appearance of counsel. Now comes another matter. Habeas corpus petitions at the High Court are being filed complaining of detention (a) by the State and (b) by persons who are not the State.

If the detention is by the State and it is illegal detention, then it is a clear case that the High Court upon a prima facie satisfaction whether on the application or suo motu issues a notice of motion on a writ of habeas corpus and what issues is as a warrant, misunderstood as a notice to produce the body of the person so detained dead or alive. Such cases normally ought to and should be going before a Bench of two Judges.

Then there are complaints of illegal detention. This may tantamount to wrongful confinement within the ordinary meaning of law, for instance, Section 340 of the Indian Penal Code, 1860. Any person who normally could lay a complaint before the Magistrate (in case he does not desire to go to the police station) and in the circumstances of Bihar this perhaps may be a deterrent. Nothing restrains such a person or his friends or his kinsmen from laying a complaint before the Magistrate that there has been wrongful confinement and that it is an offence, and that the body of a person so detained by produced. But, such an impression may not be carried that the High Court is doing the job of a Magistrate.

Yet the High Court will keep its door open where there be a wrongful confinement which it may at its discretion discern. The warrant of habeas corpus seeking the return and the production of the body of the person so detained whether dead or alive, each matter will yet depending upon the facts and the circumstances of the case. But where the detention is not by the State, this Court feels that while the doors of this Court may be open such petitions should normally engage the attention of a division presided by a Judge and not two. Put up next week under the same heading.

Order dt. 12.12.2003

At best, this matter may be one of wrongful confinement.

Learned counsel for the petitioner sought permission to withdraw the petition.

Thus, consigned.