T.N.R. Tirumalpad, J.C
1. The Sessions Jodge has made this reference with a recommendation that the order of the first class Magistrate, Amarpur dated 30-3-60 issuing a search warant for the production of the petitioner and the subsequent order of the same Magistrate dated 31-3-60 making over the petitioner to the custody of her husband were bad in, law and should be vacated.
2. The respondent, who is the husband of the petitioner, filed a complaint Under Section 498 IPC before the said Magistrate on 30-3-60 against three persons, his mother-in-law, his brother-in-law and a relative of theirs alleging that any have keep his wife, the petitioner aged 17 or 18 years and confined her after taking her away from her husband's custody with a view to getting her married to another person.
He therefore prayed that there may be police investigation. The Magistrate examined the complainant and in his examination he stated that his wife went for courtesy visit to her mother on the 8th Citra and that on the 16th Chaitra i.e., 30-3-60 when he went to fetch her back his mother-in-law told him that she will not allow his wife to go with him and the other We accused said that she would be given in marriage elsewhere and that his wife was confined with a view to giving her in marriage elsewhere. He said that he wanted to get back his wife and to have the cas0 tried. He also applied for a search warrant Under Section 100 Criminal Procedure Code.
3. After recording the statement, the Magistrate issued the search warrant. On 31-3-60 the petitioner (the wife) was brought before the Magistrate by the Police. Then she filed a petition stating that she was not willing to go with her husband and that she went of her own free will to her mother's place as she did not want to live with her husband and as the latter was not maintaining her properly and was ill-treat tag her in spite of several Panchayats in the village. The Magistrate appears to have totally disregarded this petition filed by the wife and did not pass any order thereon. He examined the wife in Court and to her examination, she stated that she married the respondent seven or eight years ago, that she, of her own accord, left her husband's house and went to her father's house because she had no peace of mind and because the husband was not maintaining her and that she was not willing to go back be him. She also said that her child had been forcibly taken away from her. This statement made by the petitioner was also ignored by the Magistrate.
4. It appears that the respondent filed a petition stating that he must be given custody of his wife pending the case and that if it was not done, it will be difficult for him to maintain the child. This application alone was considered by the Magistrate and he passed an order on 31-3-60 that the petitioner was allowed to remain with her husband till the next data of a bail of Rs. 100/-. The case was then adjourn-ed to 7-4-60. On that date no further order was passed regarding the custody of the wife, even though the order on 31-3-60 was that she was allowed to remain with her husband till the next date. The order-sheet of the gis-trate does not show that any further order was passed regarding the custody of the wife.
5. The learned Sessions Judge in the order of reference spates that even on the complaint and the statement recorded from the complainant by the Magistrate no offence Under Section 498 I- P. C, was made out as the complainant had admitted that the petitioner went to her parent's house on a courtesy call and that therefore no case of taking or enticing away the petitioner from the custody of her husband would arise. The learned Sessions Judge would therefore say that it was wrong on the Part of the Magistrate to have issued a search warrant or to have got the wife brought to his Court on the allegations in the complaint.
6. On this point I am unable to agree was the Sessions Judge, Under Section 498 I.P.C., it is not necessary that the wife should have been taken or enticed away. The leirned Sessions Judge did not evidently notice the latter part of the Section which stated that who-ever conceals or detains the wife with intent that she may have illicit intercourse with another person would be guilty under that section, The respondent had stated that his wife was confined by his mother-in-law with the intent that she should be given in marriage to another person. This statement may come under the lat the part of Section 498 of detention of the wife| for the purpose of illicit intercourse.
7. But I agree with the Sessions Judge that he Magistrate was wrong in issuing search-warrant straightway. After all the wife was with her mother. The Magistrate could nave issued a notice to the mother arid to the wife and heard them before proceeding Under Section 100, Even after the wife was brought to Court, she made it clear hat she was not willing to go with her husband who was ill-treating her. It is surprising that the Magistrate in spite of a petition by the wife and in spite of a statement in Court by her to that effect ignored ft al. together and acted on the petition filed by h6 husband.
8. Under Section 100 Criminal Procadure Code the Magistrate has to be satisfied that the person was wrongfully confined. So when the person concerned states before the Magistrate that she was not wrongfully confined, but she was there of her own accord, the Magistrate cannot thereafter give any directions regarding the person's custody. Here it was the complaint of th0 huslxund that his wife was1 unlawfully detained. Such a complaint will really come only Under Section 552, Criminal Procedure Code and only the District Magistrate will have jurisdiction to pass orders thereon and not a first class Magistrate.
9. The husband did not state In the course of the proceedings that this wife was a rhino and 50 he was entitled to her custody-Even in his petition dated 31-3-60 he did not say that his wife was 3 minor. All that ho sail was that if his wife was not given in custody to him, it will be difficult for him to look after the child. No Magistrate has got the juristic. tion to give the custody of a wife to her husband if she is a, major. Even if she is a minor and the complaint is that she is unlawfully detained as in this case, only the District Magistrate has the jurisdiction to order restoration to the husband.
10. The Magistrate in this case did not hold any enquiry to find out whether the wife was a minor or a major. The wife stated that she was a major- If the wife is a major, the Magistrate has no authority Under Section 100, Criminal Procedure Code to order that the wife should go with the husband- Section 100 no doubt states that the Magistrate on the production, of the person for whom the search warrant is issued shall make such order as in the circumstances of the case seems proper. This will certainly not give the power to a Magistrate to interfere with the liberty of an, adult person. ,If th0 wife is not willing to go with the husband, as in this case, the Magistrate can only set her at liberty and, allow her to go where she pleases.
11. I am unable to understand the order of the Magistrate stating that the wife is allowed to remain with her husband. That order would real as if the wife wanted to go with the husband and that the Magistrate was only 'allowing1' her to do so. But the petition filed by the wife as well as her statement before Court clearly showed that the wife was unwilling to go to her husband. That order of the Magistrate is clearly meaningless and would even amount to lack of bona fides.
12. Further I am unable to understand under what provision of law the 'Magistrate called upon the wife to give bail for Rs. 100/-. The wife is not accused of any offence End S'C-tions 498 and 497, Criminal Procedure Code-: will not apply to the cas3. There is no provision in the Criminal Procedure Code under which a person produced before Court Under Section 100 can be called upon to give bail. It is thus clear that the entire order of the Magistrate dated 31-3-60 is not only meaningless but even mala fide. The Magistrate should understand that he is not an autocrat to deal with the liberty of the citizen as he likes. He is bound by the provisions of law.
13. The reference is accepted and the order of the Magistrate is set aside. A copy of this order will be sent to the Magistrate concerned.
14. It would appear that there was a prayer before the Sessions Judge to recommend to this Court to quash the proceedings in. the criminal case itself. But the Sessions Judge-did not do so as the accused persons were not before him. It was not necessary for the Sessions Judge to have the accused persons before him when the records come up before him Under Section 435, Criminal Procedure Code. But I find that the complainant also did not appear before the Sessions Judge. Nor did the complainant appear in, this Court. Hence I do not propos0 to deal with the criminal case in this order. But I would direct the Magistrate in dealing with the case to keep in mind that the wife, namely the petitioner, had appeared before him and stated: that she was not detained by the accused persons and that she remained in her mother's place of her own accord.