Skip to content


Harihar Vs. State of Uttar Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1963CriLJ541
AppellantHarihar
RespondentState of Uttar Pradesh and ors.
Excerpt:
- - 10,000/- with two sureties each in the like amount for production of kumari whenever required by any court. clearly lays down that a search warrant under this section can be issued only if the magistrate has reason to believe that a person is confined under such circumstances that the confinement amount to an offence. minor and he clearly held that she was the legally wedded wife of harihar......on the other hand, moved a revision with the prayer that the condition imposed be vacated and his wife kumari, be handed to him without any condition. the learned sessions judge, who heard both the revisions, dismissed the revision of smt. gujrati and has made a reference with the recommendation that the condition imposed with regard to the furnishing of security be set aside and kumari permitted to go the house of harihar.4. it may at the very outset be observed that while exercising the revisional jurisdiction the high court does not enter into questions of fact unless the finding recorded is perverse such that no normal person could have taken that view. where the finding recorded by the magistrate appears to be reasonable, this court shall not depart from that finding though leaving.....
Judgment:
ORDER

D.S. Mathur, J.

1. This order governs Criminal Reference No. 12 of 1962 and Criminal Revision No. 99 of 1962 arising out of the same case, Kumari is the daughter of Smt. Gujrati, and Harihar claims to be the husband of Kumari. Smt. Gujrati moved an application for issue of a search warrant under Section 100, Cri. P. C. with the allegation that Harihar had wrongfully confined her daughter, Kumari. Smt. Gujrati denies the marriage and her case further is that Kumari is minor aged not more than 13 years. Smt. Gujrati made two conflicting statemerits but for purposes of these proceedings it shall be sufficient to note that according to her age of Kumari is about 13 years. Kumari was in due course arrested and produced before the Magistrate. She then indicated her desire to live with her mother, Smt. Gujrati.

2. After recording the evidence of the parties the Magistrate arrived at the opinion that Kumari had been married to Harihar and that she was not wrongfully confined. He therefore directed that Kumari shall be permitted to go to the house of Harihar provided that he furnished a personal bond of Rs. 10,000/- with two sureties each in the like amount for production of Kumari whenever required by any Court. It was further ordered that in case such security was not furnished within seven days Kumari shall be handed over to her mother, Smt. Gujrati,

3. Smt. Gujrati preferred a revision against this order with the request that the daughter be handed over to her. Harihar, on the other hand, moved a revision with the prayer that the condition imposed be vacated and his wife Kumari, be handed to him without any condition. The learned Sessions Judge, who heard both the revisions, dismissed the revision of Smt. Gujrati and has made a reference with the recommendation that the condition imposed with regard to the furnishing of security be set aside and Kumari permitted to go the house of Harihar.

4. It may at the very outset be observed that while exercising the revisional jurisdiction the High Court does not enter into questions of fact unless the finding recorded is perverse such that no normal person could have taken that view. Where the finding recorded by the Magistrate appears to be reasonable, this Court shall not depart from that finding though leaving it open for the parties to challenge the matters in controversy in regular proceedings if so advised. The finding of the Magistrate that Kumari was married to Harihar cannot be said to be improper and we shall have to start With the assumption that she was the legally married wife of Harihar. On the question of age the Magistrate has not recorded a clear finding but at one place he observed that according to Smt. Gujrati, the age of Kumari could be between 13 and 18 years. We can therefore safely assume that in the opinion of the Magistrate Kumari was then a minor.

5. Section 100, Cri. P. C. clearly lays down that a search warrant under this section can be issued only if the Magistrate has reason to believe that a person is confined under such circumstances that the confinement amount to an offence. It is only wrongful confinement which is an offence and is punishable under the I.P.C. Confinement by a person who has the authority to keep in his custody the person confined cannot be said to be wrongful nor can that person be said to be acting wrongly, otherwise the guardian shall not be able to properly bring up minors in his custody, all the more, those minors who have somewhat gone astray. This rule can be applied not only to minor unmarried persons but also to a minor wife. In other words, where the husband keeps his minor wife at his house, may be against her wishes, he cannot be said to have been acting wrongly and thereby guilty of the offence of wrongful confinement. When the person was not confined in such circumstances that the confinement amounted to an offence, no application for issue of a search warrant under Section 100, Cri. P. C. was maintainable. In the instant case the Magistrate has by implication recorded the finding that Kumari was: minor and he clearly held that she was the legally wedded wife of Harihar. Harihar was thus not committing any offence by confining Kumari in his house and, consequently, the application made by Smt. Gujrati for the issue of a search warrant under Section 100, Cri. P. C. was not maintainable. Such an application could later be rejected and an order passed to restore the conditions existing before the application was made. In other words,. Kumari was to be handed over to Harihar unconditionally and not subject to his furnishing security.

6. It was, however, contended on behalf of Smt. Gujrati that this Court must look to the interest of the minor and should not send her to Harihar's place as otherwise her life shall be in danger. No opinion need be expressed on the allegation so made but the fact remains that the jurisdiction of the Magistrate under Section 100, Cri. P. C. depended upon certain circumstances and when the circumstances did not exist he had no right to exercise the jurisdiction. When the Magistrate had no right to issue a search warrant, he must pass an order by which the conditions existing before the issue of the warrant are restored. Having initially exercised the jurisdiction illegally, he cannot later act illegally by usurping the jurisdiction of the Civil Court by appointing another per-son as guardian. The only remedy available to Smt. Gujrati is to move the Civil Court for such remedy as she may be advised. She can either pray for declaration that Kumari is not the legally wedded wife of Harihar or move the District Judge for her being appointed as a certified guardian of her daughter Kumari.

7. To sum up, Kumari was to be handed over to Harihar unconditionally and not subject to his. furnishing security.

8. The Reference is, therefore, accepted and the conditions imposed by the Magistrate are set aside. Criminal Revision is dismissed. The stay order passed shall stand vacated.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //