(1) By this petition under section 482 of the Code of Criminal Procedure, the petitioner seeks to invoke the inherit powers of this Court to quash the proceedings initiated by her husband-respondent No. 1, under section 97 of Criminal Procedure Code before Judicial Magistrate, First Class, 5th Court, Akola. Brief facts leading to the present petition may be stated as follows :-
'THE respondent No. 1-Shaligram, was married to the petitioner in 1970 at Pune. A child by name Sunil was born to the couple in February 1971 at Pune. Thereafter, the petitioner was carrying for the second time, but during the period of pregnancy, the relations between the husband and wife had strained and it is alleged by the present petitioner that she was driven out by the husband in September 1972. She was thereafter residing with her parents at Bombay, when the second child-Anil was born on 1-6-1973. According to the petitioner, she has no source of income and she and her new born child Anil were solely dependent for their maintenance and livelihood upon her parents. It is further the submission of the petitioner wife that because of the financial stringency and finding that she is unable to bring up the child in a proper atmosphere and to impart good education to him, she handed over the custody of the child to a couple by surname Doraswamy of Bombay in the nature of adoption. This was effected in April 1974, It is further averred by the petitioner that her second child Anil continues to be with the couple Doraswamy since April 1974 up-to-date. It is further averred that the child is being looked-after by them and is being educated IN a convent school and the child is in a healthy state and has attained the age of Ii years.'
(2) The petitioner has further placed some facts on record which go to show that because of the intervention of common friends and relatives, a re-conciliation between the husband and wife was attempted and accordingly in the year 1981, the petitioner wife went to reside with her husband-respondent no. 1. She, however, did not go with her second child-Anil who continues to be at Bombay with Doraswamy. This attempt of reconciliation, however, proved futile according to the petitioner and about a couple of months thereafter, she was again required to return to Bombay.
(3) The material portion in the petition with which we are concerned is as follows:
'IN May 1984, the respondent husband had come to Bombay and wanted to meet his second child, Anil. The husband lodged a report at Nagpada Police Station that he is not being allowed to meet his child, and consequently the Nagpada Police Station produced the petitioner wife and the child Anil at the police station and the respondent husband having noted the same returned back to Akola.'
(4) Few days thereafter on 20th May 1984, the respondent husband, filed a petition under section 97 of the Code of Criminal Procedure in the Court of Chief Judicial Magistrate, Akola, seeking issuance of a Search Warrant for production of the child Anil on the ground that the said child is in wrongful confinement and is not with the legal guardian mother and that its life is in danger.
(5) Judicial Magistrate, First Class, 5th Court Akola, issued a show cause notice to the wife-petitioner (non-applicant in the said proceedings) calling upon her to appear before the Court on 31st May 1984 along with her son-Anil to reply to the said proceedings.
(6) According to the petitioner, she was served with the notice on 29th May, 1984; But because of riotous situation then prevailing at Bombay, she was unable to proceed to Akola to attend the same on 31-5-1984. Thereafter a Warrant of Arrest for the petitioner was issued and the Nagpada police station were about to execute the said Warrant of Arrest upon the petitioner. It is submitted by the petitioner that initially she moved the High Court at Bombay but was advised to move the Nagpur Court, as the Warrant was issued from Akola Court. It is in these circumstances that the present petition has come up before this Court.
(7) Shri Raje Advocate appears for the petitioner, while the respondent No. 1 is represented by Shri S.C. Mehadia, Advocate. Respondent no. 2 State is represented by Shri S.Z. Deshbbratar, Assistant Govt. Pleader.
(8) It was contended on behalf of the petitioner that the husband and wife-the petitioner and respondent have been away from each other over a period of 12 years and the husband has never cared for the wife, nor for the second child born out of the wedlock. He further contended that probably because the reconciliation in 1981 had failed, the husband-respondent is taking out the vengeance upon the petitioner by implicating her in these proceedings and harassing her and the second child. The petitioner contended that in the interest of justice and to avoid the abuse of the process of law, it would be desirable that these proceedings initiated by the respondent No. 1 be quashed and the notices and warrants issued there under may also be set aside.
(9) On behalf of the respondent; Sbri Mehadia contended that this court should not exercise its inherent powers under section 482 of the Code of Criminal Procedure in a matter where the Trial Court has merely issued a show cause notice and has not yet taken any steps for issue of search warrant against the wife or the child. He further pointed out that several allegations have been made in the petition, the veracity of which could be decided by the trial Court by way of counter affidavit or evidence and this court would not be the proper forum to deal with the merits of the case.
(10) Under section 97 of the Code of Criminal Procedure, Magistrate is empowered to issue a Warrant for search of a person provided he has reason to believe that the person concerned is in confinement and that the said confinement amounts to an offence. It is equally true that the Magistrate may be satisfied on the basis of an application under Section 97 and in that even the may issue a Search Warrant directly without entering upon a detailed enquiry. If, however, on perusal of the application, the trial court does not find sufficient reason to believe that the person concerned is in confinement which amounts to an offence, he may postpone the issuance of a search warrant and instead embark upon an enquiry into the allegations in the complaint such as by calling upon the applicant to produce additional evidence and also calling upon the non-applicant to show cause against the said allegation.
(11) In the instant case, I find that the Trial Court apparently was not satisfied that it was a fit case for issuance of a Search Warrant. He, thereforee, merely issued a notice to the petitioner wife-non-applicant in the Search Warrant Proceedings to appear before him on a given date, in order to give reply to the husband's application. It is thus apparent on the face of record that the Magistrate was intending to enter upon an enquiry into the application and the allegations. However, the notice to the petitioner wife directed her to attend the Court along with her minor son Anil for giving reply to the husband's application. It is in default of this notice that the Warrant of Arrest was issued to the petitioner. I fail to understand as to why the Magistrate was required to .call upon the petitioner-wife, to appear before it along with her son Anil who is admittedly Ii years old child. Since the Magistrate wanted the wife to file reply and show cause against the husband's application, it was enough for the Magistrate to have issued a notice to the wife and to call upon her to file her reply. I find that indirectly by issuing a notice and calling upon the wife to produce the child along with her, the Magistrate has insisted upon the appearance of the minor child whose custody and/or confinement is a question, yet to be decided.
(12) As regards the contention of the petitioner that the entire proceedings under section 97 impugned in this petition should be quashed and set aside, I am not in agreement with the petitioner's counsel. The Magistrate was within his jurisdiction to enquire into a proceeding under section 97 of the Code of Criminal Procedure in the face of the allegations made in the complaint and that at any rate, the Magistrate has not taken any final step towards issuance of such a warrant. It would not, thereforee, be desirable to thwart the jurisdiction and powers of the trial Court and to enter upon the merits of the case in these proceedings by invoking the inherent powers.
(13) However, I am satisfied that the notice by which the trial court called upon the wife to appear before it along with her son is unsustainable and unjust, since the same was issued only for the purpose of enquiry.
(14) In the result, thereforee, the petition is partly allowed. 'It is hereby directed that the no ice issued on 23-5-1984 by the trial Court to the petitioner -wife to remain present along with her son is hereby quashed and set aside. The petitioner wife is directed to remain preset before the trial Court on 17-8-1984. The petitioner wife is present in person and she undertakes to remain present on the said date. The trial Court is directed to immediately required from the wife as well as from the respondent husband the facts and circumstances of the case and then decide as to whether Search Warrant for the production of the child Anil is necessary or not. With these observations, the proceedings are disposed of.