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1988 Supreme(Bom) 20
BOMBAY HIGH COURT
A. A. DESAI, J.
PRAVINSINGH AND ANOTHER
VERSUS
BIHARILAL SINGH AND ANOTHER, NON-APPLICANTS.
Criminal Revn. Appln. No. 59 of 1986,
Decided On : 14 -1 -1988
The scope of Section 97 of the Criminal Procedure Code and the powers of a Magistrate to issue a search warrant for a person who is alleged to be wrongfully confined.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 97 - SEARCH WARRANT - EXECUTION - SCOPE - SEARCH OF PERSON ALLEGED TO BE DETAINED WRONGFULLY - PLACE AND NAME OF PERSON QUOTED IN WARRANT OR SUPPLIED IN WARRANT ARE MERELY ENABLING - EXECUTING AUTHORITY CAN SERVE WARRANT OF SEARCH AT PLACE OTHER THAN MENTIONED IF PERSON ALLEGED TO HAVE BEEN DETAINED IS NOT FOUND AT PLACE MENTIONED IN WARRANT.
Fact of the Case:
The applicant's father-in-law filed an application under Section 97 of the Criminal Procedure Code, alleging that the applicant had ill-treated his daughter and that she was being wrongfully confined by the applicant and his family members. The Magistrate issued a search warrant directing the police to search the applicant's house for the applicant's wife. The police executed the warrant and found the applicant's wife at her father-in-law's house. The Magistrate then ordered the applicant's wife to go with her father.
Finding of the Court:
The court held that the Magistrate had acted properly in issuing the search warrant and that the police had been justified in executing the warrant at the applicant's father-in-law's house. The court also held that the Magistrate had not erred in ordering the applicant's wife to go with her father.
Issues: Whether the Magistrate had acted properly in issuing the search warrant.
Ratio Decidendi: The court held that Section 97 of the Criminal Procedure Code empowers a Magistrate to issue a search warrant for a person who is alleged to be wrongfully confined. The court also held that the place and name of a person quoted in the warrant or supplied in the warrant are merely enabling and that the executing authority can serve the warrant of search at a place other than mentioned if the person alleged to have been detained is not found at the place mentioned in the warrant.
Final Decision: The court dismissed the revision petition.
1. This revision has questioned the correctness and legality of order passed by the learned Magistrate under S.97 of the Criminal Procedure Code and its executability. The applicant No. 1 Pravinsingh has married with applicant No. 2 Rekha on 22-2-1985. The respondent No. 1 Biharilalsingh is father of applicant No. 2 Rekha.
2. Non-applicant Biharilalsingh on 19-12-1985 applied to the Judicial Magistrate, First Class, Ramtek, under S.97 of the Criminal Procedure Code praying for issue of search warrant against applicant Pravinsingh for search of applicant No. 2 Rekha. The non-applicant in the said application averred that right from the date of Bidai applicant No. 2 Rekha has been ill-treated by applicant No. 1 and members of his family. She has been mercilessly beaten. It is further averred that on receiving this information he went to Rajnandgaon to see his daughter Rekha. However, she could not be found out. Thereupon he reached to mouza Kawardha which is a place of service of father-in-law of Rekha where according to the complainant Rekha was suffering from mental as well as physical torture. The complainant non-applicant No. 1 then requested non-applicant No. 2 to send Rekha with him. He refused. The applicant has further averred that Rekha disclosed to her father that she cannot live in the house as she has been badly beaten and ill-treated. The complainant further averred that on 18-12-1985 Rekha wrote a letter to the complainant that she should be taken within such time otherwise she would have no other alternative but to commit suicide. She had also sent a telegram on 19-12-1985. The complainant averred that the applicant No. 2 Rekha is wrongly confined by non-applicant No. 1 and members of his family and she is not allowed to do anything.
3. The learned Magistrate after going through the application which is on affidavit made by the complainant and the letter sent by Rekha on 18-12-1985 issued a warrant of search directing the Police Station Officer, Ramtek to depute head constable for the search of applicant Sou. Rekha. Accordingly, the warrant of search was issued, directing the Police Station Officer, Ramtek to search for Sou. Rekha in the house of applicant Pravinsingh, situated at Durga Chowk, Rajnandgaon and if found to take Sou. Rekha forthwith. The Police authorities executed the warrant of search on 21-12-1985. It was served at mouza Kawardha, district Rajnandagaon at the residence of M.L. Singh, Sub-Divisional Magistrate, Kawardha, who is the father-in-law of Sou. Rekha.
Accordingly on 21-12-1985 Sou. Rekha was produced before the learned Magistrate. She reported before the Court that she met with very cruel treatment from her husband and members of his family and hence she does not want to reside with her husband and will like to reside with her father the complainant. The learned Magistrate terminated the proceedings and passed order accordingly on 21-12-1985.
4. Mr. Sirpurkar, the learned counsel appearing for the applicant very vehemently, questioned the validity of the execution of warrant of search issued under S.97 of the Criminal Procedure Code. According to Mr. Sirpurkar, the warrant has specified the place and also the name of the person where and from whom the search of Mrs. Rekha was to be made. Mr. Sirpurkar, therefore, submitted that executing a warrant of search at Kawardha at the place of father of applicant by the police agency was totally unauthorised. Mr. Sirpurkar made a submission that the matter of search is confined to the place and person as described in the warrant of search and as such they could not go beyond the same. According to Mr. Sirpurkar search of Mrs. Rekha at Kawardha is invalid and beyond the authority and as such bad in law.
5. Mr. Sirpurkar in sport of his submission placed reliance on a judgement in Chepa Mahton v. Emperor, reported in AIR 1928 Patna 550. The Patna High Court considering the scope of S.100 of Criminal Procedure Code (old) has observed :-
"It is no
