R.J. Shah, J.
1. The present Special Criminal Application is directed against the order dated 21st November 1983 passed by the Additional Sessions Judge, Bhavnagar in Criminal Revision Application No. 113 of 1973 allowing the said revision application which in turn was directed against the order dated 20th October 1983 passed by the Chief Judicial Magistrate, Bhavnagar in Criminal Miscellaneous Application No. 383 of 1983 wherein the application for search warrant under Section 97 of the Criminal Procedure Code was dismissed.
2. In order to appreciate the rival contentions it is necessary to state a few facts in brief. Present petitioner Mayabhai has a daughter by name Vijuben. An agricultural labourer in his farm by name Dulabhai Amrabhai developed relations with the said Vijuben who is alleged to be a minor and kidnapped her from her father's custody. The said Dhulabhai claims that he has married Vijuben and Vijuben also delivered a female child in the month of September 1983. Petitioner Mayabhai has filed a complaint before the police on or about 24th February 1983 at Bagdana being Crime Register No. 21 of 1983 under Sections 363 and 366 of Indian Penal Code. Pursuant to the said complaint, the J.M.F.C. Mahuva ordered Vijuben to the custody of Tapibai Vikas Grih, Bhavnagar on 6th October 1983. The said Dhulabhai presented the aforesaid Criminal Miscellaneous Application No. 383 of 1983 under Section 97 of the Criminal Procedure Code on or about 15th October 1983. The learned Chief Judicial Magistrate, Bhavnagar was pleased to dismiss the said application. The learned Additional Sessions Judge, as stated above, was pleased to allow the revision application directed against it ordering as under:
This revision application is allowed. Vijuben who is now staying in Tapibai Vikasgrih, Bhavnagar under the orders of the Judicial Magistrate, First Class, Mahuva, is now ordered to be set free and is permitted to go wherever she desires to go.
Copy of this order be sent to the Superintendent of Tapibai Vikasgrih, directing her to submit compliance of her setting free forthwith.
Hence the present special criminal application.
3. At the outset, it is to be noted that no steps have been taken by the said Dhulabhai against the order of the Judicial Magistrate, First Class, Mahuva ordering Vijuben to the custody of the said Vikasgrih. In the nature of things the said order provided for interim custody pending the trial. Despite the aforesaid Misc. Criminal Application No. 383 of 1983 was presented under Section 97 of the Criminal Procedure Code for issuance of a search warrant.
4. Section 97 of the Criminal Procedure Code, 1973 provides as under:
97. Search for persons wrongfully Confirmed. - 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 who 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.
The confinement of Vijuben in the facts and circumstances of the present case cannot be regarded as amounting to an offence within the meaning of Section 97 so that search warrant can be issued in the case.
5. Apart from the aforesaid, an order under Section 97 of the Criminal Procedure Code has been held to be an interlocutory order in Harakh Singh v. Lalmuni Kuer 1977 Cri. L.J. 723 by the Patna High Court. This was also a case where the opposite party was accused of having committed the offence of kidnapping. It was held that the final judgment would, therefore, be with regard to the question as to whether the petitioner and the other accused had committed the offence alleged, that the search and the recovery was a matter incidental to the proceedings, that the question of custody of the persons recovered also was obviously a matter which was incidental arising in the proceedings and that the Court had not the slightest doubt that the order passed on an application under Section 97 regarding the custody of the persons found was an interlocutory order. The learned Additional Sessions Judge had, therefore, obviously erred in entertaining the revision application before him.
6. In this connection, the learned Counsel for respondent No. 1, has urged that when a warrant is issued under the said Section 97 it is an interlocutory order but when the same is not issued and the application is dismissed then the order cannot be regarded as an interlocutory order. Nothing has been pointed out by the learned Counsel for respondent No. 1 in this connection by way of authority supporting the said view. I see no justification in drawing such a distinction. The order remains interlocutory irrespective of the fact whether the search warrant is issued or refused, since the search and the recovery is a matter incidental to the proceedings.
7. Perusing the order of the learned Additional Sessions Judge, it seems that he has attempted to appreciate the evidence regarding the age of Vijuben in the revision application before him. The trial pursuant to the complaint is yet to take place wherein one of the central questions would be regarding the age of Vijuben. Such an approach, it would seem, was totally unwarranted in such a revision application. The order in question, therefore, cannot be sustained on this score also.
8. The learned Counsel for respondent No. 1 has also referred to Bholanath Goswami v. The Commissioner of Police and Ors. A.I.R. 1955 NUC (Calcutta) 2918. It says that Section 100 of the Criminal Procedure Code, 1898 does not empower a Magistrate to order protective detention of a person recovered who is sui juris and who was not an accused and could not, therefore, be arrested and detained and who does not require protection. The full text of the said decision has not been made available. It does not seem that the said principles could be made applicable in a case such as the present when the fact situation is as stated above. A reference was also made on behalf of respondent No. 1 to a decision in the case of Lalmani Devi v. The State : AIR1957Pat689 In this case, upon a complaint in respect of an offence of kidnapping and abduction, the sub-divisional Magistrate issued a distress warrant against the accused and a search warrant for the production of the kindnapped girl. When the accused was arrested, the girl appeared before the Sessions Court and moved a bail application for the release of the accused on the allegation that she was 22 years of' age and had married the accused.
9. The accused was thereupon released on bail. But when the girl came out of the Sessions Court she was arrested and produced before the Sub-Divisional Magistrate who remanded her to jail custody. Thereupon the girl moved an application under Section 491 of the Criminal Procedure Code, 1898 and Article 226 of the Constitution of India. In the meanwhile, her statement had been recorded under Section 164 and the report of her medical examination had also been submitted before the High Court. The report showed that she was above 18 years. In the above circumstances, it was held that the Magistrate was not justified in ordering her detention in jail custody in violation of the fundamental right of personal liberty guaranteed to the petitioner under Article 21 of the Constitution. The fact-situation in the present case being different as stated above, the said decision can be of little or no avail in the present case.
10. One more decision on which reliance is put on behalf of respondent No. 1 is the case of Lokumal Kishinchand Manghnani and Ors. v. Vivek Arya and Anr. 1972 Cri. L.J. 1564. Here, the Magistrate passed an order under Section 100 Cri. P.C. directing her detention in Rescue Home in order to have her free statement in the case in a complaint under Section 342 Indian Penal Code by the husband against his wife's parents for wrongful confinement of his wife who was sui juris and denied her wrongful confinement and expressed her desire to go back to them. It was held that the said section did not empower the Magistrate to order detention of a person who was sui juris if that person neither committed nor was he likely to commit an offence. The fact-situation in the present case is entirely different. In the order passed by the learned Chief Judicial Magistrate, Bhavnagar it has been mentioned referring to the contentions raised on behalf of the State that the age of Bai Viju as per school leaving certificate was 14 years 7 months and 8 days at the time when the complaint was lodged by the father before the police, that is to say, on 24th February 1983. The said decision, therefore, can be of no assistance in the matter.
11. In the aforesaid circumstances, the order passed by the learned Additional Sessions Judge is patently illegal and cannot be allowed to stand. The Special Criminal Application is, therefore, allowed. The order dated 21st November 1983 passed by the Additional Sessions Judge, Bhavnagar is hereby set aside. Rule is made absolute.