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Dhapu Vs. Puri Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Misc. 49 of 1959
Judge
Reported inAIR1959MP356; 1959CriLJ1184
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 552 and 561A
AppellantDhapu
RespondentPuri Lal and ors.
Appellant AdvocateAnand Bihari Mishra, Adv.
Respondent AdvocateP.L. Dubey, Dy. Govt. Adv.
DispositionPetition allowed
Cases Referred(Purilal v. Dhapubai and
Excerpt:
..... - the matter proceeded like a criminal prosecution and it will not be out of place if i may mention that on 1-1-1959 a warrant was issued for the arrest of dhapubai in which she was described as an 'accused' and the proceedings were described as for an 'offence under section 552 of the criminal p. 14. on going through the proceedings before the district magistrate i am satisfied that the object and purpose of section 552 was completely ignored and disregarded. i, therefore, fail to understand for what purpose future inquiry was contemplated. i find that in the exceptional and extra-ordinary circumstances of this case and in order to prevent the harassment of dhapubai petitioner, the proceedings pending before the district magistrate must be quashed......were finally heard on february 20, 1959 and the case was posted for order on 21-2-1959. on that datedhapubai did not appear and an application was sent by her informing the court that she was suffering from dysentry. the learned magistrate ob-served in his order of that date that it was necessary that dhapubai should appear, and, therefore, he fixed march 27, 1959.11. on 16-3-1959 dhapubai approached this court with the present petition. she stated in brief all these facts and prayed for the quashing of the proceedings before the district magistrate. in the alternative she prayed that the matter be transferred to some other district magistrate. stay of proceedings was also requested. this court entertained the petition and issued notices. puranlal (petitioner before the district.....
Judgment:
ORDER

Shiv Dayal Shrivastava, J.

1. This is a petition under Section 56IA of the Code of Criminal Procedure praying that proceedings under Section 552 of that Code pending before the District Magistrate Shajapur be quashed.

2. Non-petitioner No. 1 Puranlal made an application to the District Magistrate on 29th January, 19.57 complaining thai his daughter Dhapubai (who was impleaded as non-peti-tioner No. 1 in that application) was unlawfully detained for unlawful purpose by non-petitioners 2 and 3 who are respectively her husband and father-in-law. The unlawful detention alleged was that non-petitioner No. 1 had come to the petitioner because she was tired of the harassment at the hands of non-petitioner No. 3, who attempted to take undue liberties with her on several occasions. On 26-1-1957 when the petitioner had been out and Dhapubai was alone in his house, non-petitioners 2 and 3 aided by 5 or 6 men, came to the house armed with weapons and look her away forcibly and were detaining her. The unlawful purpose alleged was that non-petitioner No. 3 had indention to commit illicit intercourse with Dhapubai.

3. This petition was supported by an affidavit which was almost an identical copy of the petition. On the receipt of that petition the District Magistrate immediately issued a search warrant and fixed 4-2-1957 for further proceedings.

4. On 31-1-1957 the police produced Dhapu-bai before the District Magistrate, who examined her. There she stated that she was brought be-fore the Magistrate by the police from the house of her husband; that she wanted to live with her father; that she was married to non-petitioner No. 2 about 16 years back; that she did not wish to stay with him because she was in trouble; that he beat her and insulted her; that her father-in-law had taken undue liberties with her; and that she was at that time quick with a child. After recording her statement the learned District Magistrate passed the following order on that clay:

'To-day the police produced Dhapubai, whose statements has been recorded. In this matter 4-2-1957 is fixed. She must be produced on that date. The petitioner must furnish a security of Rs. 500/-. Dhapubai be entrusted to the petitioner.'

5. On 4-2-1957 the petitioner was asked to produce evidence on 13-2-1957 which was fixed for hearing. On that date neither the petitioner nor the non-petitioner No. 1 appeared; so the District Magistrate ordered the issuance of a notice to the petitioner to show cause why the security should not be forfeited and 5-4-1957 was fixed.

6. In this way, several dates were fixed. The adjournments were either because Dhapubai was not present before the Magistrate, or the Magistrate was on official tour, or because the applications for adjournments were made. Sometimesthe District Magistrate was busy in some meeting e. g., of the Planning Committee. Eventually on 23-12-1957 the learned District Magistrate heard arguments, but they remained unconcluded since the counsel wanted time to cite authorities. The matter was, therefore, adjourned to the following day. But on that day the counsel for the petitioner was elsewhere, hence the matter was postponed for one month and 22-1-1958 was fixed. On that date find on the dates fixed subsequently, viz., 24-2-1958, 28th March, 17th May, 27th May, 18th June, 4th July, 5th July and 5th August, time was taken by the counsel for preparing themselves for arguments.

On 19-9-1958 the learned Magistrate fixed 17-10-1958 for the production of Dhapubai before him. Thereafter November 18, 1958 and then January 18, 1959 were fixed for the same purpose. On the last mentioned date the Magistrate was informed that Dhapubai was ill. The learned Magistrate ordered that a security for Rs. 500/- should be furnished and he fixed 23-1-1959. On that date, the surety for Dhapubai submitted to the Magistrate that he had an apprehension of a quarrel and, therefore, Dhapubai could not be produced on that date. So 24-1-1959 was fixed.

7. In the meantime on 22-1-1959 Dhapubai appeared before the Magistrate and filed a detailed application, which, if I may say so, was an expression of her disgust at the protraction of these proceedings. Her application opens by saying:

'In your honour's court my matter has been pending since 29-1-1957 which is two years from to-day. Applicant's (her own) statement has already been recorded and arguments have also been already heard. Even then this case has not yet been disposed of.'

She further invited the attention of the learned magistrate in that application (22-1-1959) that she was a major, she could understand her own interests and in the circumstances cited therein, she was then living with her maternal uncle Daulat Ram. She prayed in that application that the matter may be disposed of on that very date, but, if for any reason matter was to be disposed o on 23-1-59, which was the date fixed, some arrangement be made for her escort and protection, otherwise she apprehended that Ram Chandra and Bhisa would forcibly take her away as soon as she would be out of the court premises.

8. The order that was passed on this application was 'tomorrow on due date.'

9. On 24-1-1959 Dhapubai again appeared before the Magistrate and again her statement was recorded. This tine she not only reiterated what she had said in her previous statement but further added that during the pendency of these proceedings she had moved to her maternal uncle's house and that she did not want to go to her father, but wanted to stay with her maternal uncle.

10. After recording this statement the counsel for non-petitioners 2 and 3 wanted an opportunity to show to the Magistrate the law that even a woman who had attained the age of majority could be entrusted against her will to that person from where she had been produced before the Court. The learned Magistrate granted the prayer and fixed 20-2-1959. At the same time it was ordered that Dhapubai's surety (Onkarlal) should continue to be bound to produce her before him. In this manner, in spite of the fact that Dhapubai had anpcarcd for the third time before the District Magistrate on 24-1-1959 another distant date (after 26 days) was fixed. However, arguments were finally heard on February 20, 1959 and the case was posted for order on 21-2-1959. On that dateDhapubai did not appear and an application was sent by her informing the court that she was suffering from dysentry. The learned Magistrate ob-served in his order of that date that it was necessary that Dhapubai should appear, and, therefore, he fixed March 27, 1959.

11. On 16-3-1959 Dhapubai approached this Court with the present petition. She stated in brief all these facts and prayed for the quashing of the proceedings before the District Magistrate. In the alternative she prayed that the matter be transferred to some other District Magistrate. Stay of proceedings was also requested. This Court entertained the petition and issued notices. Puranlal (petitioner before the District Magistrate) did not appear before me in spite of service.

12. I have seated above in detail what happen-ed before the District Magistrate during these two years. It must be remembered that the proceedings were under Section 552 of the Code of Criminal P. C. which runs thus:

'Upon complaint made ........ to a DistrictMagistrate on oath of the abduction or unlawful detention of a woman .......... for any unlawfulpurpose, he may make an order for the immediate restoration of such woman to her liberty, ..........and may compel compliance with such order, using such force as may be necessary.'

13. I am constrained to observe that the learned District Magistrate at no time took care to see what the scope of the proceedings before him was. The matter proceeded like a criminal prosecution and it will not be out of place if I may mention that on 1-1-1959 a warrant was issued for the arrest of Dhapubai in which she was described as an 'accused' and the proceedings were described as for an 'offence under Section 552 of the Criminal P. C.' Not only that surety bonds were taken hut also notices for showing cause why the bond should not be forfeited were also issued. All this was wholly outside the ambit of Section 552 Cr. P, C.

14. On going through the proceedings before the District Magistrate I am satisfied that the object and purpose of Section 552 was completely ignored and disregarded. That is the least that I can say. This section is intended to give immediate relief to a person, who is in unlawful detention for an unlawful purpose. If such proceedings can go on for two years, what more can be the abuse of the procedure? And what substantial relief will be given after the lapse of two years?

15. Section 552 aims at summary disposal of an application. A protracted inquiry in such matters would defeat the very object for which this section has been enacted. From the facts stated above I find that Dhapubaj was brought before the District Magistrate on 31-1-1957, that is to say, the very third day of the initiation of the proceedings on the issuance of the search warrant by the District Magistrate. The learned Magistrate recorded her statement. That was quite proper and necessary. On that very day the learned Magistrate should have completed the inquiry and should have passed a final order.

The parties were before him. If the learned Magistrate had borne in mind the fact that it was not a case of criminal prosecution and that the object of Section 552 Cr. P. C., was to afford the relief of immediate restoration of the woman to her liberty, the only order that the Magistrate could pass after recording her statement was to set her at liberty forthwith. It was her absolute option (and it I may say so, her fundamental right guaranteed under the Constitution) to go anywhere that she wanted. No restriction could be imposed by the District Magistrate on her personal liberty in proceedings under Section 552 Cr. P. C. But it is surprising that shewas handed over to her father who was asked to furnish security for producing her whenever her appearance was required.

No one knows for what purpose her appearance was required unless she was treated as an accused. Whether the allegations made by Purilal were wrong and Dhapubai's staying with her husband could not be said to be unlawful detention, or whether the allegations were correct, in either event the only order that the Magistrate could finally pass in the proceedings before him was to restore her to her personal liberty and leave it to her absolute choice to go wherever she wanted. In those proceedings the Magistrate had no jurisdiction to decide the respective rights of the father and the husband. I, therefore, fail to understand for what purpose future inquiry was contemplated. And then nothing substantial was done for long two years. It is ridiculous that proceedings under Section 552 should be postponed month after month when the liberty of a woman (or of a minor child) is involved in such proceedings.

16. I may here point out that the woman was old enough (between 20 and 25 years) to form an independent judgment about herself. When her statement was recorded the Magistrate could give to the parties an opportunity to cross-examine her, if so desired by them.

17. In the case of Tulsidas v. Chetandas, AIR 1933 Nag 374 it was pointed out that the provisions of Section 552 Cr. P. C. though limited in their scope, being analogous to the directions of the nature of habeas corpus, it is doubtful if the legislature could have intended to apply the elaborate procedure prescribed in Chapter XVI Or. P. C. to cases falling under the section.

18. In her own application dated January 21, 1959 (filed on January 22, 1959) Dhapubai made it very clear that she was no more residing either with her husband or with her father; but was residing with her maternal uncle of her own free will and accord. Her statement on oath was recorded by the Magistrate on the 24th January wherein she said the same thing. In the petition before me also the same has been reiterated.

19. Having heard Shri A. R. Mishra for the petitioners and having gone through the record, which I had sent for, I am fully convinced that the proceedings going on before the District Magistrate are but an abuse of the process of law and on that findings it becomes the duty of this Court to exercise its power under Section 561A of the Code of Criminal Procedure. I had also given notice to the Government Advocate for assisting me. Shri P. L. Dubey, Deputy Government Advocate appeared before me and he conceded that the proceedings before the District Magistrate after January 31, 1957, were all improper and unwarranted. In my opinion, the concession is right.

20. This Court has got inherent power to interfere with the proceedings of a subordinate court at any stage of a proceeding if it finds that an abuse of the process of law is being carried on in that case. I find that in the exceptional and extra-ordinary circumstances of this case and in order to prevent the harassment of Dhapubai petitioner, the proceedings pending before the District Magistrate must be quashed.

21. I, therefore, allow this petition and quashthe proceedings pending before the District Magistrate. Shajapur, in criminal miscellaneous case No.5 of 1957 (Purilal v. Dhapubai and others).I thank Shri Puttulal Dubey for his valuableassistance.


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