Full Judgment
1. Let the affidavit of service filed today be kept with the record.
2. Heard learned Counsel of the respective parties.
3. By this application under Article 226 of the Constitution of India one Samir Kumar Pal, father of a ten years old missing girl 'Shilpa' with effect from 20th November, 2001, has prayed for issuance of a writ of habeas corpus for tracing out the said girl, or in the alternative a direction entrusing the Central Bureau of Investigation (CBI) for taking up the investigation for the purpose of tracing out that missing girl.
4. It is contended that inspite of lapse of more than two years the investigating agency of the State having failed to recover the missing girl, a writ of habeas corpus is required to be issued.
5. Mr. Mukherjee, learned Counsel appearing on behalf of the State contended that investigation of the case was taken up by the local police station and subsequently it was taken up by CID and investigation is still in progress.
6. In support of this contention documents are produced and it is rightly urged that when the investigation is in progress and the massing girl is not indicated to be in the custody of anybody else, the present application is not maintainable.
7. It is a settled provision of law as led down by the Apex Court from its earlier decisions in State of Bihar v. Kameswar, : [1952]1SCR889 and in Ghulam v. Union of India, : 1967 CriLJ1204 , that habeas corpus is a writ in the nature of an order calling upon a person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment.
8. So in a habeas corpus proceeding the Court is required to consider the legality or otherwise of the detention of a particular person. Such a situation is not involved in this case and as such the writ in the nature of habeas corpus cannot be issued as prayed for.
9. Considering this aspect of the matter and the fact and circumstances of this case we are of the view that the present application is not maintainable and a writ in the nature of habeas corpus cannot be issued as prayed for. The application is accordingly rejected.
10. However, this order cannot stand in the way of the petitioner's taking further legal action for getting appropriate relief.
11. The application is thus disposed of.
12. Let a plain xerox copy of this order duly countersigned by an Assistant Registrar (Court) be handed over to the learned Counsel for the parties for compliance.
G.C. De and Arun Kumar Bhattacharya, JJ.