Allahabad High Court
Shan Mohammad vs State Of U.P. And Another on 20 January, 2021
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?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 enumerated and stipulated in those sections.
In the instant case, the application under Section 97/98 Cr.P.C filed by applicant for issuance of search warrant was rejected by court of C.J.M., Hathras on the basis that no complaint or any other case regarding this matter was pending. It may be observed that there is no such legal requirement that before exercising powers under Section 97/98 Cr.P.C, some complaint or case must be pending before that court. Pendency of a criminal complaint or a case concerning the matter is not condition precedent to invoke jurisdiction under Section 97/98 Cr.P.C. Thus, the impugned order is not sustainable.
In view of aforesaid, the impugned order is set aside and matter is remitted back to the court of CJM, Hathras to decide the application of applicant afresh in accordance with law.
Application under section 482 Cr.P.C. is allowed in above terms."
Pursuant to order dated 8.10.2020, application filed by the applicant was decided afresh by Chief Judicial Magistrate, Hathras, but he again rejected the same vide order dated 19.11.2020. Feeling aggrieved, applicant has now approached this Court by means of present application under Section 482 Cr. P. C. Perusal of order dated 19.11.2020 goes to show that Court below has recorded a categorical finding that wife of applicant is residing with her father in her father's home i.e. in her maika. On account of above, it cannot be said that wife of applicant is in illegal confinement. Aforesaid finding has neither been challenged nor contradicted by applicant in the affidavit filed by applicant in support of this application under Section 482 Cr. P. C. In view of aforesaid uncontroverted finding, no interference is called for in this application by this Court.
The application is, accordingly, rejected.
Order Date :- 20.1.2021 HSM