Sh. Sudhir Mishra & Anr. vs State & Ors. on 1 July, 2019

[Cites 15, Cited by 0]

Delhi High Court

Sh. Sudhir Mishra & Anr. vs State & Ors. on 1 July, 2019

Equivalent citations: AIRONLINE 2019 DEL 919, 2019 (4) ADR 739

By the instant writ petition, the petitioners-the husband and the wife, in short - Sudhir and Laxmi respectively, seek issuance of a writ of Certiorari to quash two search warrant orders dated 10.04.2019 and 22.04.2019 passed by MM-02, Shahdara, Karkardooma, Delhi on an W.P.(Crl.) No.1245/2019 Page 1 of 14 application made by the respondent No.3-Sh. Virender Singh, in short 'Virender', under Sections 97 and 98 of the Code of Criminal Procedure through the respondent No.4-an Advocate, in short 'Harish' and such other writs as may be appropriate including a direction to Virender to not to interfere in the private life of Sudhir and Laxmi by any means.

2. At the onset, it may be noted that the instant writ petition has come to be entertained in exercise of extraordinary jurisdiction vested with this court under Article 226 in conjunction with Article 227 of the Constitution of India, quite conscious of the fact that an alternative remedy to set aside the impugned orders in exercise of the inherent power vested with the High Court under Section 482 was equally available to the petitioners, and, possibly, Laxmi could have had recourse to Section 397 Cr.P.C. and file revision against the impugned orders. The facts attracting invocation of the extraordinary jurisdiction of this court, which shall follow, would disclose that the impugned orders of issuance of search warrant and production of Laxmi by the ld. Magistrate on an application made by Virender under Sections 97 and 98 Cr.P.C. were perverse and a consequence of blatant misuse of the process of court, which, directly affected the fundamental right of personal life and liberty of Sudhir and Laxmi enshrined under Article 21 of the Constitution of India. Writ petition coming up for hearing on the same date, when the matter was again fixed before the lower court, compounded the subject. At this stage, it may only be noted that the Constitution does not place any fetter on the exercise of W.P.(Crl.) No.1245/2019 Page 2 of 14 extraordinary jurisdiction of the High Court as enshrined under Article 226 and it is left to the discretion of the High Court to exercise such jurisdiction and the power, as and when a situation so warrants. Suffice it would be to say, it is exercised to enforce the rule of law. Instances of tenability of a writ petition under Article 226 to quash the criminal proceedings and even conviction can be found in M/s K.L. (P) Ltd. & Ors. vs. The Municipal Commissioners of Kamarhati Municipality & Ors., 1985 Cri LJ 26 and Banwarilal Agarwalla vs. The State of Bihar & Ors., 1961 AIR 849.

3. Factual matrix, giving rise to filing of the writ petition, can be taken note of in brief.

Virender, who was an acquaintance of Sudhir and Laxmi and had also ventured into a business activity with Laxmi, filed an application under Sections 97 and 98 Cr.P.C. for issuance of search warrant, the prayer clause remaining silent as to the person to be searched and produed and what for. The application so made was supported by an affidavit of Virender himself only and accompanied with two purported complaints made to two police stations. One, purportedly under the hand of Laxmi addressed to SHO PS Shakarpur and the other made by Harish-an Advocate to SHO PS Farsh Bazar. Subject application under Sections 97 and 98 Cr.P.C. came to be made before the Magistrate having jurisdiction over PS Farsh Bazar with State being the only respondent. On the very first date of such application coming up for hearing, impugned order dated 10.04.2019 came to be passed by the Magistrate directing issuance of search warrant under Section 97 Cr.P.C. with further direction to produce W.P.(Crl.) No.1245/2019 Page 3 of 14 Laxmi before a Magistrate/his court and the report thereon called for 20.04.2019. On 20.04.2019, the Magistrate issuing such search warrant was away for TIP proceedings and the link Magistrate adjourned the matter to 22.04.2019, when, in the absence of production of Laxmi, fresh search warrant was directed to be issued for 30.04.2019. It is the same date, when the writ petition came up for hearing before this court. As the pleadings and the prayer made in the application, on the basis whereof the impugned orders came to be passed, are quite unclear and vague, it would be apposite to reproduce the contents of such application in its totality itself. Same are, as under :

"APPLICATION U/S 97 & 98 R.P.C. FOR THE ISSUANCE OF THE SEARCH WARRANT.

MOST RESPECTFULLY SHOWETH :-

1. That the applicant is the permanent resident of the above said address.

2. That the applicant friend/business partner is resident of Laxmi Nagar, Delhi, that on 26.03.2019, the applicant friend/business partner made a written complaint against Sh. Sudhir Mishra, Sh. Daroga Mishra, Krishan Mishra and relative of Sudhir Mishra was threatened to kill Smt. Laxmi Mishra. The same complaint was given to S.H.O. and Commissioner of Police Delhi on 28.03.2019 through Speed Post. The copy of the complaint and postal receipt is annexed herewith as Annexure-A (Colly).

3. That on 29.03.2019 the applicant friend Smt. Laxmi Mishra was met with her sister namely Rinki her mobile is 9625867121 R/o Gali No.3, Patel Nagar, Near Railway Station Delhi, her sister namely Rinki was forcefully detained Smt. Laxmi at her house with malafide intention the called the above accused person and all they were forcefully abducted the Smt. Laxmi, and W.P.(Crl.) No.1245/2019 Page 4 of 14 illegally detained, after then Smt. Laxmi have sent a message to his counsel to protect me and informed the petitioner (Virender Singh). That counsel Sh. Harish Kumar was made a PCR Call at 100 number through his mobile No.9873769272, but all were in vain and police has not taken any action against culprits as well as counsel Sh. Harish Kumar was also given written complaint to S.H.O. vide DD No. 63A, dated 29.03.2019.

The copy of message and complaint are annexed herewith as Annexure B & C.

4. That on 07.04.2019 petitioner mobile No. 9773846732 was called at about 10:23 A.M. & 10:30 A.M. to Smt. Laxmi Mishra her mobile No. 7400382885, and Smt. Laxmi Mishra received a call and talk with the petitioner and told all the incidents to petitioner, as per the conversation of petitioner and Smt. Laxmi Mishra is detained in Rudrapur, Gorakhpur, U.P. against her wishes and all the above accused persons were trying to kill Smt. Laxmi Mishra as well as all the accused persons were forcefully detained, daily beaten by the accused person and children of Smt. Laxmi Mishra Namely Sidhant Mishra @ Sidhu age about 12 years old they also not safe in illegal custody of all accused persons.

5. That the applicant has reported to the matter to the concerned police station Farsh Bazar but no action has been taken so far, in this regard.

PRAYER It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to issued the search warrant at the above noted applicant may kindly be recovered who is illegally confined/detained against her wishes by the above accused persons in the interest of justice."

The application so made by Virender, as observed to earlier, was accompanied with two purported complaints and on the basis of W.P.(Crl.) No.1245/2019 Page 5 of 14 such pleadings and the material, the lower court proceeded to pass the following order on the very day of taking up such application, as under:

"10.04.2019 Present : Ld. APP for the State.

Applicant in person with counsel.

An application u/s 97 Cr.P.C. has been filed by the applicant stating that one Ms. Laxmi Mishra has been detained by Mr. Sudhir Mishra and his relatives. It is also submitted that the applicant has received messages from Ms. Laxmi Mishra about being taken hostage and expressing apprehension of danger to her life.

Record perused.

Arguments heard.

In view of the submissions, issue search warrant u/s 97 Cr.P.C. to be executed by SHO concerned and produce her before a Magistrate/this court.

Put up for report on search warrant on 20.04.2019. Copy of the order be sent to SHO concerned for compliance.

Sd/-

MM-2/Shahdara/KKD/Delhi 10.04.2019"

On 20.04.2019, the Magistrate passing the order dated 10.04.2019 being away for TIP proceedings, the link Magistrate summoned the IO for 22.04.2019, when the concerned Magistrate, passed the other impugned order dated 22.04.2019, as under :

" Present : Applicant with counsel.

W.P.(Crl.) No.1245/2019 Page 6 of 14

Perused. Since lady/victim has not been produced, issue fresh search warrant for production of Laxmi Mishra for 30.04.2019.

Sd/-

MM/SHD 22/4/19"

4. According to the petitioners, the right of the petitioners to cohabitate as husband and wife by no stretch of imagination could be termed to be a confinement and the issuance of the search warrant under the impugned orders was violative of their fundamental right as enshrined under Articles 14 , 19 and 21 of the Constitution of India. More so, on an application made by a third party, who had no locus standi to file the subject application under Sections 97 and 98. Also, according to the petitioners, none of the ingredients of Section 97 and 98 were fulfilled and therefore, exercise of jurisdiction by this court under Article 226 to correct the gross error of jurisdiction, was maintainable. Placing reliance upon Govind vs. State of MP, 1975 Cr.LJ 1111, the petitioners also plead that the right to life and liberty guaranteed under Article 21 includes the right to be let alone and every citizen has a right to safeguard the privacy of his own, his family, marriage etc. Besides that, according to the petitioners, Virender's action in making the subject application had the effect of enticing and taking away Laxmi and thereby, attracted Section 498 IPC, though, adultery stood struck down as unconstitutional. Also, according to them, the impugned orders were hit by Latin maxim 'Actus Curiae Neminem Gravabit' and therefore, this court was under W.P.(Crl.) No.1245/2019 Page 7 of 14

an obligation to undo the wrong committed by the inferior court. As for the purported complaint made by Laxmi, in the writ petition, it also comes to be stated that during the business relationship of Laxmi with Virender, she was made to sign certain blank papers for closure of the partnership a month before, which were used by Virender to pressurise her to elope with him, which act of Virender was aided and abetted by Harish. In the short synopsis of submissions filed on behalf of the petitioners, it has also come to be stated that on the search warrant issued in pursuance of the first order dated 10.04.2019 a clear report was recorded by woman SI, who recorded after meeting Laxmi that there was no case for illegal/wrong confinement and therefore, the order of issuance of second search warrant by the lower court on 22.04.2019 was contemptuous and non-est in the eyes of law, which invited invocation of the parens patrice jurisdiction by this Court.

5. As for the prosecution, the synopsis of submissions that has come to be filed after the filing of the status reports reflects that, at this stage, the prosecution actually concedes to the case of the petitioners, though, not in specific terms thereof inasmuch as it seeks to elaborate the expression 'reason to believe' contained in Section 97 Cr.P.C. placing reliance upon Ashok Thadani vs. Ramesh K. Advani & Ors., 1982 Cri.LJ 1446 and Vinodbhai Dhudabhai Bhagora vs. Kadiben, passed in Special Criminal Application No. 1430 of 2008.

In Ashok Thadani's case (supra) it was observed that for invoking Sec. 97 Cr.P.C. the Magistrate is not empowered to issue search warrant on the mere allegations made in the affidavit and the W.P.(Crl.) No.1245/2019 Page 8 of 14 expression 'reason to believe' requires the Magistrate to be on guard before he issues search warrant.

6. The impugned orders by itself do not disclose any reasons for the Magistrate to form an opinion for the issuance of the search warrant either on 10.04.2019 or on 22.04.2019. It appears, the impugned orders have come to be passed without any application of mind much less due application of judicial mind. Reasons therefor are many. First of all, the nature of pleadings by itself do not clearly disclose as to whether the application made was falling within the contours of confinement amounting to an offence attracting Section 97 Cr.P.C. OR abduction or unlawful detention attracting Section 98 Cr.P.C. Suffice to say, Section 97 and Section 98 Cr.P.C. are founded on two entirely distinct premise. Broadly, it can be said that Section 97 is attracted when there is an element of wrongful confinement attracting commission of an offence, whereas, Section 98 is attracted when there is abduction or unlawful detention of a woman or a female child under the age of 18 years for any unlawful purpose. Certainly, the application made by Virender did not have even a semblance of allegation of abduction or unlawful detention of Laxmi for any unlawful purpose. Squarely therefore, in the absence of even any allegation of her abduction or unlawful detention for any unlawful purpose, Section 98 Cr.P.C. was not attracted.

7. Sec. 97 Cr.P.C. reads, as under :

"Search for persons wrongfully confined. - If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that W.P.(Crl.) No.1245/2019 Page 9 of 14 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 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."

Section 97 is a provision in aid rather than being substantive. It can be invoked by the Magistrate even of his own knowledge in exercise of power vesting in him under Sec. 190 Cr.P.C. when he has reason to believe that a confinement, which is an offence, has come to be committed within his territorial jurisdiction. Intent being such, Sec. 97 stipulates for a person searched to be immediately taken before a Magistrate to enable him to pass such orders as the circumstances of the case may require. Exercise of such power is thus well defined and it requires no elaboration that power so vesting in the Magistrate is quite drastic and cannot be exercised lightly inamsuch as any unjustifiable and arbitrary use may lead to serious consequences of loss of reputation, emotional pain and suffering, insult etc. and seriously violate a person's fundamental rights of life and liberty which, undoubtedly, would include a right of privacy. It is also to be remembered that Sec. 97 clearly defines the limitations for its exercise inasmuch as the confinement amounting to an offence is sine qua non to invoke it. It cannot be construed to be akin to habeas corpus action.

8. The averments and the allegations made in the application being wholly vague, the other material before the lower court was the purported complaints and some mobile text messages, on the basis W.P.(Crl.) No.1245/2019 Page 10 of 14 whereof, the complaint came to be made to SHO PS Farsh Bazar by Harish, who was none else but an Advocate of Virender, who equally made the application under Sections 97 and 98 Cr.P.C. The application so made before the Magistrate having jurisdiction over PS Farsh Bazar on the complaint made by an Advocate and so the application, being unethical, was simply overlooked. This is compounded by the fact that the other purported complaint attributed to Laxmi was made to SHO PS Shakarpur through Speed Post and a bare perusal of the copies of the postal receipts show that this was sent from District Court Complex, Saket on 28.03.2019. Sending of this communication through post from District Court Complex, Saket- by itself, at least prima facie, was indicative of the fact that Laxmi was not under a confinement, which could be construed to be an offence. More so, the said complaint purportedly made by Laxmi, as per the trial court record received by this court, which is maintained haphazardly, is seen to be incomplete inasmuch as only first page of the purported complaint made by Laxmi to SHO PS Shakarpur is seen on the record of the lower court. Equally, nothing emerges from the record of the lower court for the State on its part having taken any initiative to put forth and bring to the notice of the lower court for any action taken on any of the complaints received either at PS Farsh Bazar or PS Shakarpur much less for any cognizance of the offence of wrongful confinement, which is cognizable, having been taken at any point of time. Not only such inaction, it transpires from the lower court record that on the search warrant issued for Laxmi on 10.04.2019, police officers led by an ASI of PS Farsh Bazar visited W.P.(Crl.) No.1245/2019 Page 11 of 14 the house of the petitioners at Village & Post Katrari, PS Deoria, UP and there, recorded the statements of Sudhir, Laxmi as also Sh. Jai Prakash Dubey, who was the father of Laxmi. As per the statement of both Laxmi and her father, Laxmi was not under any confinement. To the similar effect, it came to be stated by Sudhir, Laxmi and their son Master Siddhant besides Mr. Jai Prakash Dubey-father of Laxmi; and, Sh. Krishan Kumar Mishra-brother of Sudhir, when they appeared before this court and stated that they were living together as a family at Deoria without any friction amongst them of any kind whatsoever. It appears, State on its part, whose duty was to protect and preserve the sanctity of the pious relationship of husband and wife - Sudhir and Laxmi - which includes their personal privacy as also their house, adopted a lackadaisical approach, a stance of total silence. Were the officers representing the State especially the police, oblivious of their fundamental duty, one wonders. Report of ASI dated 20.04.2019 equally narrates a bizarre work, when police searches Laxmi in her own house and inspite of the statement made by her and her father that she was not under any confinement, was still taken to the Court of CJM, Deoria and that too, at the instance of the complainant Advocates Harish and S.P. Yadav, where also Laxmi reiterated for being not under any illegal detention. The act of the police in taking Laxmi to the court of CJM at the instance of Advocates Harish and S.P. Yadav - so recorded in the report dated 20.04.2019 - inspite of the fact of Laxmi by herself having stated that she was not under any detention, is wholly unacceptable. It is a serious reflection of highhandedness of the police acting at the instance of Advocates W.P.(Crl.) No.1245/2019 Page 12 of 14 Harish and S.P. Yadav, who were none else but the agents of Virender. Neither the purported search warrant issued under the impugned order nor Section 97 prescribes so. The entire sequence of the events raises eye-brows as to the bonafide of the action(s) and smacks of serious conspiracy in the misuse of the process of court.

9. In view of the foregoing and to have a consideration on the aspect of compensation to the victim(s) and the liability thereof, the following directions are issued :

(a) Proceedings on the application made by the respondent No.3-Virender Singh in which the impugned orders dated 10.04.2019 and 22.04.2019 came to be passed by the Magistrate-02, Shahdara, Karkardooma, are quashed;

(b) The directions given to the respondent No.3-Sh.

Virender Singh to not to have any communication with the petitioners by any means shall continue till further orders; and,

(c) State through Public Prosecutor is directed to place before this court a report for the action taken on the complaints, one purportedly made by Laxmi to SHO PS Shakarpur and the other made by the respondent No.4 - Sh. Harish Kumar, Advocate to SHO PS Farsh Bazar, on which the subject application under Secs. 97 & 98 was made by the respondent No.3-Sh. Virender Singh. In doing so, the genuineness of the complaint purportedly W.P.(Crl.) No.1245/2019 Page 13 of 14 made by Laxmi to SHO PS Shakarpur may be gone into. The report shall be prepared by an officer not below the rank of ACP and submitted with this court, within one month from today.

10. List on 1.8.2019.

A.K. CHAWLA, J.

JULY 01, 2019 rc W.P.(Crl.) No.1245/2019 Page 14 of 14

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