Ss. 97 & 98 of Code of Criminal Procedure are identical with Art. 32 of the Constitution of India as there are concerns with life & liberty of the person

Court of Sessions Judge, Gondia: Suhas V. Mane, Sessions Judge, remanded the matter to Magistrate on noting no foundation in the Magistrate’s observation.

Factual Matrix

Applicant who was the husband of respondent 1 had filed a missing complaint stating that his wife was missing and he suspected that respondent 2 kidnapped her. But no cognizance for the same was taken by the Police, therefore complainant approached the Magistrate by filing the application under Sections 97 and 98 of the Code of Criminal Procedure for issuing search warrant.

It was alleged in the application that respondent 2 seduced respondent 1 and forced her to flee away with him. Further, it was also alleged that respondent 2 wrongfully confined respondent 1.

Magistrate rejected the application by observing that the applicant mentioned in the report that there was a love affair between respondent 1 and 2. Prima Facie it was revealed that respondent 1 voluntarily went with respondent 2.

Magistrate did not issue search warrant, though it was alleged that his wife was wrongfully confined.

“…provisions of section 97 and 98 of the Code of Criminal Procedure are identical with the provisions of Article 32 of the Constitution of India as there are concerns with life of person and liberty of the person.”

 Revision Petitioner submitted that rejection of application was not legal and proper, hence the request was made to set aside the order and allow the revision petition.

Bench laid down the following points for consideration:

1] Whether the impugned order passed by Judicial Magistrate First Class, Tiroda in Miscellaneous Criminal Case No. 58/2021 dated 02-03-2021relating to rejecting the application, is legal, valid and proper?

2] Whether any interference is required in the said order?

3] What order?

Bench noted that when it was alleged in the application that respondent 2 seduced and wrongfully confined respondent 1 in a secret place, then without recording the statement of respondent 1, how did the magistrate conclude that prima facie it reveals that respondent 1 voluntarily went with respondent 2.

The above observation of Magistrate had no foundation, he ought to have followed the procedure when it was pointed out to him that the applicant’s wife had been wrongfully confined by a particular person.

Hence, Magistrate erred and did not follow proper procedure, therefore interference was required.

Adding to the above Sessions Judge expressed that issuance of search warrant directing police to produce respondent 1 before the Magistrate is necessary and after that recording of respondent 1’s statement.

Conclusion

  • Revision Petition was allowed.
  • Order of the Magistrate was set aside.
  • Matter remanded to the Judicial Magistrate with direction that he shall issue a search warrant and after production of respondent 1 appropriate steps may be taken.

[Kavidas v. Varsha, Criminal Revision Application No. 9 of 2021, decided on 18-03-2021]


Advocates who appeared before the Court:

Advocate Shri. S. J. Chavhan, for Petitioner. Ld. APP Shri Khandelwal for Respondents.

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