In the High Court of Karnataka
(Before Nagappa, J.)
Sri Khamarulla Khan alias Ali Jan
Smt. Mujiba K. Khan
Decided on February 6, 1980
Citation: 1980 SCC OnLine Kar 44
Nagappa, J.:— This petition is directed against the order dated 23rd February 1979 passed by the Matropolitan Magistrate (IV Court) Bangalore City in C.C. No. 474 of 1979 ordering that the custody of the child—Maqsood Ali Khan—be given to the respondent (complainant).
2. Respondent, who is the complainant before the trial Court, is incidentally the wife of the first petitioner. The complainant filed a complaint before the trial Court under Section 200 of the Code of Criminal Procedure against her husband-A1-(1st petitioner herein), her mother-in-law and two sisters-in-law, A-2 to A-4 respectively (petitioners 2 to 4 herein) alleging that they have committed offences punishable under Sections 339, 340, 342, 344, 346 and 361 of the Penal Code, 1860. In short the averments are that she married A-1 on 18th July 1976 and thereafter she lived with A-1 and the other accused at Bangalore. Out of the said wedlock a male child by name Maqsood Ali Khan was born to her through A-1 on 6th November 1977. After sometime she along with her husband (A-1) took up a separate residence at No. 780, Indiranagar First Stage, Bangalore and lived there happily. She has alleged that her husband has always been prone to violence and was illtreating her from within a short time after the marriage, but she bore his violence patiently hoping that in course of time he would mature into a reasonably decent husband and would treat her with compassion, love and respect. When her husband was in financial difficulty he used to ill-treat her and demand her to go to her parents’ house and bring such sums that would be sufficient to get over his financial stringency.
The complainant hoping that her husband would mend his ways, succumbed to the pressures of her husband and made her parents part with huge sums of money thinking that this could appease him and that he would show a certain amount of humanity, love and respect towards her. But it reached a stage that the parents of the complainant were unable to meet the periodical demands of A-1. When the things stood thus, on 8th February 1979 the child took ill, as he was suffering from diarrhoea and her husband at the instance of A-2 to A4 and with the object of causing her mental torture and harassment ostensibly took away the child with the excuse that he would take the child to the Doctor, but in fact A-1 took the child to the house of A-2 to A-4 and in spite of her repeated requests A-1 did not bring back the child or permit her to visit the child, who was in the house of A-2 to A-4. It is her further allegation that on 15th February 1979, A-1 in a fit of temper, assaulted her and drove her away from the matrimonial house threatening her never to return and that if she attempts to return or seek to visit the house of A-2 to A-4 with the object of seeing her child, that he (A1) would kill her as also her father. As it was unbearable for her to live any longer with her husband, because of physical assault, mental torture and ill-treatment, she sought refuge and shelter with her parents and though she was trying to see her child, she was not permitted to do so by the accused. Again on 17th February 1979 she sought the assistance of Tilak Nagar Police to visit her child and to take him back with her to attend to his illness. She accompanied by a police officer in civilian clothes approached the residence of A2 to A4 where A1 is also residing and tried to gain entrance into the said house, but she was not permitted to enter the house and in fact A1 to A4 with the common object, started attacking not only her but her father also, who was present then and that fact was noticed by the police officer who was present there. When she demanded the return of her child all the accused told her that the child was not available with them and that they would never return the child to her. She has also alleged that the child may be suffering, being away from her. On the basis of the aforesaid allegation she has filed the above complaint on 22nd February 1979 and prayed that the Court may be pleased, in the interest of justice, to order a search for the child at the house of the accused or at such other place where the child may be confined illegally under Section 100 of the Code of Criminal Procedure and thereafter the child be restored to her, as being the mother, who is solely entitled to the custody of the child. She has also prayed that after restoring the child to her as aforesaid by search, the accused be suitably dealt with for their illegal acts and punish them according to law.
3. On receipt of the complaint, the learned Magistrate recorded the sworn statement of the complainant, which is in general and are in conformity with the allegations made in the complaint. Along with the complaint, she has also filed an application purported to be under Sections 97 and 100 of the Code of Criminal Procedure supported by an affidavit praying for the grant of a warrant of search in respect of the child, to trace and search the said child at the residence of the accused or at such other place as the child may be, through the concerned Station House Officer, Tilaknagar Police Station, Bangalore.
4. As could be seen from the order-sheet dated 22nd February 1979, the learned Magistrate after recording the sworn statement and also after perusing the affidavit and the contents of the complaint, ordered issue of a search warrant under section 97 of the Code of Criminal Procedure, for the search and production of the child, to the P.S.I., Tilaknagar Police Station, after registering a case in C.C. for an offence under Section 342 of the Penal Code, 1860, returnable by 1st March 1979. On 23rd February 1979 the Sub-Inspector of Police, Tilaknagar Police Station, produced the child-Moqsood Ali Khan—under the search warrant issued by the Magistrate before the Court and the order sheet dated 23rd February 1979 read thus:—
“23rd February 1979: P.S.I. Tilaknagar Police Station, produce Maqsood Ali Khan the child under search warrant issued.
Child by name Maqsood Ali Khan produced by P.S.I. Chandiram Singh of Tilaknagar.
The petitioner is present. Accused are absent. The custody of the child is given to the petitioner Mujiba K. Khan.
Issue SS to accused by 1st March 1979”.
It is the legality and correctness of this order that is being challenged by the accused in this revision petition.
5. As could be seen from the grounds urged in the memorandum of petition, the accused have challenged the order on the ground that the facts narrated in the complaint do not disclose any ingredients of the offence and at best it discloses only a dispute of civil nature in which case the learned Magistrate has no jurisdiction to issue process. It is also urged that the learned Magistrate has disposed of the entire matter in a haste without giving any opportunity to Al, who is the father of the child. The further contention is that the learned Magistrate has not given a finding that the confinement, if any amounts to an offence and in the absence of any finding to that effect the Magistrate has no jurisdiction to issue a search warrant under section 97 of the Code of Criminal Procedure. In substance what the accused have contended is that the law specifically lays down that notice must be issued to the father to appear and show cause before issuing a search warrant and in the absence of any such notice the order impugned in this petition is illegal and it is an order passed mechanically without satisfing the requirements of Section 97 of the Code of Criminal Procedure. The accused have also contended that the learned Magistrate has not applied his mind to the facts of the case before passing the impugned order and as such it is liable to be set aside.
6. On the other hand Sri H. Sulaiman Sait, learned counsel appearing for the complainant (respondent) contended that the learned Magistrate on receipt of the complaint has recorded the sworn statement of the complainant and after perusing the complaint as also the affidavit filed in support of the application under Section 97 and 100 of the Code of Criminal Procedure has come to a definite conclusion and thereafter issued a search warrant under the relevant provisions in which case there is no illegality in the impugned order calling for interference by this Court.
Section 97 of the Code of Criminal Procedure reads thus:—
“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.”
If the Magistrate enumerated in the Section has reason to believe that any person is confined under such circumstances and 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. Therefore, the alleged confinement should be such that before the issue of search warrant the Magistrate should have reason to believe that it amounts to an offence. The belief therefore must be based on certain definite facts. But at the same time it is not necessary that there should be a clear proof of the commission of the offence before issue of such a warrant and it would be quite sufficient that the materials placed before him would statisfy the Magistrate to issue a warrant as prayed for.
7. Now as could be seen from the order sheet dated 22nd February 1979 the Magistrate after perusing the sworn statement, the complaint as also the affidavit in support of the application has ordered the crime to be registered under Section 342 of the Penal Code, 1860 and thereafter proceeded to issue a search warrant returnable by 1st March 1979. Therefore, it is clear that this section does not require a notice or inquiry before issue of a warrant, but all that is necessary is that the Magistrate must be satisfied that there has been wrongful confinement and the same amounts to an offence. But a notice or an inquiry before issue of a search warrant would be a rule of prudence in proper cases, much more so, when it affects the custody of a child and the dispute is between the husband and wife. The words ction 97 of the Code of Criminal Procedure ‘has reason to believe’ indicate that the concerned Magistrate should apply his mind to the facts of the case and thereafter to proceed to issue a search warrant and at the same time the said order should indicate the reasons in support of the order so that the superior Courts may be in a position to judge whether there has been a proper exercise of the discretion or not. Unless the reasons are borne out by record and failure to state reasons would often lead to the inference that the exercise of discretion by the Magistrate is arbitrary and not based on well recognised principles.
In Yellappachari v. State of Mysore(1) this Court while considering Section 98 of the Code of Criminal Procedure, which deals with the power to compel restoration of abducted females, has observed thus:—
“Before issuing a search warrant under Section 98 Cr. P.C. the Magistrate must have reason to believe that the place or premises sought to be searched is used for keeping, depositing or selling the stolen properties—and if upon such enquiry he has reason to believe that place or the premises is under for the said purposes, he can issue a search warrant …. otherwise the action taken or order passed cannot be said to be in accordance with law”.
It appears, therefore, that the scheme of Chapter VI of the Code of Criminal Procedure, which deals with the process to compel the production of things, envisages a satisfaction of the Court after having issued notice to the parties concerned and after enquiry if necessary to pass an order thereon. As already adverted to above, this is more so, because what gives jurisdiction to the Magistrate to pass an order under Section 97 of the Code of Criminal Procedure is that he must be satisfied that there are reasons to believe that any person is confined under such circumstances, that the confinement amounts to an offence.
In Sher Shah v. Musammat Sakina Begaml(2) while considering the provisions of Section 100 of the Code of Criminal Procedure this is what the Punjab Chief Court has observed:—
“On a complaint against a husband for keeping his wife in confinement the Magistrate taking cognizance of the case is not justified in passing a hasty order ………. Before finally disposing of the proceedings, he is bound to hear both sides and after making such inquiry as may seem necessary he should pass such order as may seem right. If he finds the confinement amounted to an offence he should let the wife go and warn the husband against interfering with her except through a Civil Court. If, on the other hand, he arrives at the conclusion that such is not the case, he should advise the wife to go home with her husband warning the husband at the same time against using any coercion in taking the wife with him”.
So what follows from the aforesaid discussion is that though the Magistrate has recorded the sworn statement and also perused the complaint and passed the impugned order directing registration of a case for an offence under Section 342 of the Penal Code, 1860, it not clear as to how he has come to the conclusion that the circumstances alleged in the complaint indicate that the confinement amounts to an offence. This is much more so in view of the relationship between the complainant and A1, who are no other than the wife and husband and it is clear this both of them are fighting for the custody of their son. In such a situation it would have been prudent on the part of the Magistrate to have issued a notice to the husband before embarking upon the provisions of Section 97 of the Code of Criminal Procedure. There is no indication in the order-sheet that before passing an order under Section 97 of the Code of Criminal Procedure the learned Magistrate has issued a notice to the accused. On the other hand, it is seen from the order-sheet dated 23rd February 1979 that the learned Magistrate issued summons to the accused returnable by 1st March 1979 only after the custody of the child was ordered to be given to the complainant. Even on 1st March 1979 it appears that summons were not served on A-1 and then the Magistrate ordered fresh summons to A-1, if process was paid, returnable by 11th April 1979. It is no doubt true that issue of notice in an inquiry is a must before passing an order under Section 97 of the Criminal Procedure. But however the words used in the said section ‘has reason to believe……that the confinement amounts to an offence’ throw considerable light and indicate that it is prudent and necessary for the Magistrate to issue a notice and also hold an enquiry, if necessary, to come to the aforesaid conclusion. As already stated this procedure would be more so in consonance with the scheme of Chapter VI of the Code of Criminal Procedure and that appears to be the intention of the legislature. In this case this is all the more reason because the dispute appears to be between the husband and wife with regard to the custody of their minor son.
In Abdul Aziz v. Emperor(3) while considering Section 100 of the Code of Criminal Procedure, this is what the Punjab Chief Court has observed:
“Where a Magistrate has before him an application under section 100, Criminal Procedure Code, containing the allegations that are required by the section and asking him to issue a search warrant under it, it is incumbent on such Magistrate to satisfy himself that there is some foundation for the application, and in order to enable him to so satisfy himself, he would be acting within his powers in making an enquiry and such enquiry would be a ‘judicial proceeding’.”
It is further held therein as follows:—
“It will be seen that before a Magistrate can issue a warrant under this section, he must have ‘reason to believe’ not only that some ‘person is confined’ but ‘under such circumstances that the confinement amounts to an offence’. How is the Magistrate to arrive at such belief? Is he to exercise his powers, which are purely discretionary, on the mere allegation, oral or in writing, if some interested person of whom he knows absolutely nothing? It seems to us that he would be acting most unwisely were he to do so. In our opinion, when a Magistrate has an application before him containing the allegations that are required by the section and asking him to issue a search warrant under it, it is incumbent on such Magistrate to satisfy himself that there is some foundation for the application, and that in order to enable him to so satisfy himself he would be acting within his powers in making an enquiry. That such an enquiry would be a judicial enquiry and as such a ‘judicial proceeding’ seems to us to be beyond doubt”.
What emerges from the aforesaid discussion is that the Magistrate ought to have issued a notice to A-1-husband-and held an enquiry, if necessary, to come to the conclusion that he has reason to believe that the child is confined under such circumstances and that confinement amounts to an offence, and then only he could have proceeded to issue a search, warrant as contemplated under Section 97 of the Code of Criminal Procedure. If that is so, the order passed by the learned Magistrate is not in conformity with the provisions of Section 97 of the Code of Criminal Procedure and the same is liable to be set aside.
8. In the result, for the reasons stated above, this petition is allowed, the impugned order is set aside and the matter is remanded to the concerned Magistrate with a direction to dispose of the case in accordance with law in the light of the observations made above. However, it is made clear that the custody of the child-Maqsood Ali Khan—shall be with the complainant (mother) till the disposal of the application under Section 97 of the Code of Criminal Procedure in view of the peculiar circumstances of the case which are more fully detailed above.