Court No. - 89

Case :- APPLICATION U/S 482 No. - 19859 of 2020

Applicant :- Shan Mohammad

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Rahul Kumar Sharma

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

Heard Mr. Rahul Kumar Sharma, learned counsel for applicant

and learned AGA for State.

This application under section 482 Cr.PC has been filed

challenging order dated 19.11.2020 passed by Chief Judicial

Magistrate, Hathras, in Misc. Case No. 1204/12/19 (Shan

Mohammad Vs. Varish Ali) under Sections 97, 98 of Cr. P. C.,

Police Station Hathras Gate, District Hathras, whereby Court

below has rejected the application filed by applicant regarding

issuance of search warrant and also for a direction to Chief

Judicial Magistrate, Hathras to issue a search warrant regarding

unlawfully confined women i.e. wife of applicant.

Perusal of record shows that applicant filed an application dated

20.11.2019 before court concerned that search warrant as

contemplated under Sections 97/98 Cr. P. C. be issued regarding

his missing wife. Application was rejected by Court below, vide

order dated 6.2.2020. Feeling aggrieved by order dated

6.2.2020 applicant approached this Court by means of Criminal

Misc. Application No. 8742 of 2020 (Shan Mohammad Vs.

State of U.P. and another), which was allowed, vide order dated

8.10.2020. For ready reference order dated 8.10.2020 is

reproduced herein under:-

"This application has been filed for quashing the order dated 06.02.2020

passed by the Chief Judicial Magistrate, Hathras in Case No. 1204/12/19

(Shan Mohammad Vs. Varish Ali) under Section 97 and 98 Cr.P.C. Police

Station Hathras Gate, District Hathras, whereby the application filed by

applicant under section 97/98 Cr.P.C. has been rejected.

Heard learned counsel for applicant, learned AGA for State and perused

the record.

It has been argued by learned counsel for applicant that impugned order

dated 06.02.2020 is against law. It was submitted that applicant has filed

an application under Section 97/98 Cr.P.C. alleging that his wife has been

illegally detained by one Warish Ali and thus, prayed for issuance of

search warrant but the application of applicant was rejected by court of

learned C.J.M., Hathras on the basis that no complaint or any case

regarding this matter is pending and thus, there was no basis for issuance

of search warrant.

Learned AGA has opposed the application.

Section 97 of the Cr.P.C reads as under:

''97. Search for persons wrongfully confined.-- If any District Magistrate,

Sub-Divisional Magistrate or Magistrate of the first class has reason to

believe that any person is confined under such circumstances that the

confinement amounts to an offence, he may issue a search-warrant, and

the person to whom such warrant is directed may search for the person so

confined; and such search shall be made in accordance therewith, and the

person, if found, shall be immediately taken before a Magistrate, who

shall make such order as in the circumstances of the case seems proper.''

A careful reading of Section 97 would show that powers under Section 97

Cr.P.C. can be invoked only when the court has reason to believe that any

person is confined and that confinement is under such circumstances that

the confinement amounts to an offence. Every confinement would not give

rise to a cause for an action under Section 97 Cr.P.C. For invoking

jurisdiction under section 97 Cr.P.C., the confinement must be under such

circumstances that the confinement amounts to an offence. It will be

apposite in this context to note that Sections 97 and 98 appear in Chapter

VII of the Cr.P.C. which deals with processes to compel the production of

things (of course including persons). Sections 97 and 98 come in Chapter

VII-B dealing with search warrants. Sections 97 and 98 Cr.P.C. are

instances were search warrants can be issued for the production of

persons under the circumstances enu