Allahabad High Court
Shan Mohammad vs State Of U.P. And Another on 8 October, 2020
Equivalent citations: AIRONLINE 2020 ALL 2230
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 87 Case :- APPLICATION U/S 482 No. - 8742 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 Raj Beer Singh,J.
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 ofSection 97 would show that powers underSection 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 underSection 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 thatSections 97and98 appear in Chapter VII of theCr.P.C. which deals with processes to compel the production of things (of course including persons).Sections 97and98come in Chapter VII-B dealing with search warrants.Sections 97and98 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.
Order Date :- 8.10.2020 Mohit