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Vala and anr. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1970(3)WLN619
AppellantVala and anr.
RespondentState and ors.
Cases ReferredTulsidas v. Chetandas A.I.R.
Excerpt:
.....p.c. - - homli bad performed 'nata' according to the custom of the community with the jounger brother of her husband one mathura and since then she had been living pi aceably with her new husband mathura. to my mind, the expression used will embrace both a statement on oath made before the magistrate as well as an affidavit whioh is on oath and filed before him in suppot of the complaint. the learned district magistrate added that he was not satisfied from the complainant's statement that a case was made out for acting under section 552, criminal p. learned counsel for the state has stated at the bar that should smt, homli have any such apprehension she should apply before the district magistrate who will be making adequate arrangements for the safe conduct of the girl to and from the..........561-a, criminal procedure code by smt. homli herself praying that the proceedings before the learned district magistrate be quashed.2. vala had two sons vagta and mathura. smt. homli was married with vagta some 10 years before the filing of the application by the father of the girl with the distriot magistrate for securing her release. vagta expired borne four ye are back. one babru made an application on 1.7-70 before the learned magistrate that after smt. homli had become a widow she had been given in 'nata' to him. aooording to him, on 14-6-70 after her 'nata' with the petitioner babru she was proceeding to the village of the petitioner. on the way the petitioner was surprised by some 12 persons who attacked them. smt. homli was carried away by these persons and lodged in the.....
Judgment:
ORDER

Kan Singh, J.

1. These are two matters one is a revision application by one Vala against an order of the District Magistrate, Chittorgarh, calling upon Vala Under Section 552, Criminal Procedure Code to produce his daughter-in-law one Suit. Homli; the other is an application Under Section 561-A, Criminal Procedure Code by Smt. Homli herself praying that the proceedings before the learned District Magistrate be quashed.

2. Vala had two sons Vagta and Mathura. Smt. Homli was married with Vagta some 10 years before the filing of the application by the father of the girl with the Distriot Magistrate for securing her release. Vagta expired Borne four ye are back. One Babru made an application on 1.7-70 before the learned Magistrate that after Smt. Homli had become a widow she had been given in 'Nata' to him. Aooording to him, on 14-6-70 after her 'Nata' with the petitioner Babru she was proceeding to the village of the petitioner. On the way the petitioner was surprised by some 12 persons who attacked them. Smt. Homli was carried away by these persons and lodged in the house of non-petitioner Vala and was there kept under unlawful detention. This application was supported by an affidavit which was verified by the learned District Magistrate himself. The learned Distriot Magistrate then issued the order under revision, after hearing learned Counsel for the parties, calling upon Vala to produoe Smt. Horcli before him.

3. In challenging the order of the learned District Magistrate it is contended by learned Counsel for Vala that, in the first place, there was no complaint on oath before the learned Magistrate as required by Section 552, Criminal Procedure Oode. It is maintained that the complaint on oath means a complaint whioh is supported by a statement of the complainant on oath. According to learned oounsel, taking of an affidavit does not satisfy the requirement of a oomplaint on oath, as the conditions under which an affidavit in lieu of evidenoe can be taken have been specified in certain sections of the Criminal Procedure Code, such as, Sections 510A and 145, Criminal Procedure Oode. In the second place, it was submitted that on the death of Vagta, Smt. Homli bad performed 'Nata' according to the custom of the community with the jounger brother of her husband one Mathura and since then she had been living pi aceably with her new husband Mathura. It was submitted that her father Pura wanted to make money by giving her in 'Nata' to another person.

It was averred that Smt. Homli had ap. peared in the Court of Munsiff Magistrate Chhoti Sadri to mike a statement in connection with a case lodged by her and that went to show that she was a free agent and it was wrong to say that she had been under unlawful detention.

4. Now, I may read Section 552, Criminal Procedure Code:

Section 552. Power to compel restoration of abducted females. Upon oomplaint made to a P/eaidenoy Magistrate or District Magistrate on oath of the abduction or unlawful detention of a woman, or of a female child under the age of 'eighteen' years, for any unlawful purpose, he may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel com. pliance with suoh order, using such force as may be necessary.

The use of the expression 'Upon oomplaint made to a Presidency Magistrate or Distriot Magistrate on oath' does not lead to the narrow meaning that it is only when there is a statement on oath before the Magistrate himself that it will constitute a complaint on oath. To my mind, the expression used will embrace both a statement on oath made before the Magistrate as well as an affidavit whioh is on oath and filed before him in suppot of the complaint. The term 'complaint' here is a generic expression and cannot be equated with a complaint made Under Section 190 Criminal Procedure Oode or as one defined Under Section 4 (1) (h) of the Code, when it connotes certain allegations made before a Magistrate that some persons have committed an offence though it does not include the report of a police officer. Here the word 'complaint' means the ventilation of a grievance about a certain matter speoified in the section. Therefore, the filing of an affidavit in support of the complaint will undoubtedly meet the require, menta of 8. 552, Criminal P.C.

5. Now, it is true for certain purposes evi. denoe can be tendered by effidavits, suoh, as, Under Section 145, Criminal P.C. or in accordance with Section 510A, Criminal P. G, but undsr Section 552 the complaint has to be on oath for the satisfaction of the learned District Magistrate with a view to seeing whether he should exercise his powers under this Section or not. The pur. pose, a complaint on oath aerves, is not that of evidence as such. By way of analogy I may mention that even a statement recorded Under Section 200, Criminal P.C. is cot evidence in the case. There the statement is recorded on a complaint so that the learned Magistrate may apply his mind with a view to seeing whether he should issue pioeessea Under Section 204, Crimi. nal P.C. or make a preliminary enquiry Under Section 202, Criminal P.C.

Learned Counsel referred me to Tulsidas v. Chetandas A.I.R. 1933 Nag 374 and drew Bup. port from certain observations which, aoeording to the learned Counsel, pointed out a procedure to be followed by the learned Magistrate Under Section 852, Crimiual P.C. proceedings. In that case one Tulsidas Hied a complaint before Mr. Nehru, the District Magistrate of Chhind-wara Under Section 552, Criminal P.C. claiming restoration of his minor wife Mat. Gaura to his custody on the allegation that the first and second non-applicants who were respectively her father and brother were unlawfully detaining her oontrary (0 his and her own wish and threatened her to perform her second marriage unless the applicant lived separate from his father. After examining the applicant on oath the learned j istrict Magistrate on 16.5-1933 made an order endorsing the appli. cation that the Sub.Divisional Magistrate should hold an enquiry and report. The learned District Magistrate added that he was not satisfied from the complainant's statement that a case was made out for acting Under Section 552, Criminal P.C.

Then the Sub.Divisional Magistrate started an enquiry. Thereupon the non-applioant filed an application before the District Magistrate stating that as the District Magistrate alone had the power to deal with the case, he should not have sent it for enquiry to the Sub. Divisional Magistrate. Further it was urged that the custody of the girl was not unlawful. It is in thid context that the learned Add, tional Judicial Commissioner observed as follows :

Therefore, if a preliminary inquiry was at all found neceEeary in the present case the District Magistiate should have conducted it himself, but as at present advised, I do not think euch an inquiry is either permissible or even desirable in such a case. The provisions of Section 552, Criminal P.C., though limited in their scope, being analogous to the directions of the nature of a habeas Corpus, I doubt if the legislature could have intended to apply the elaborate procedure, prescribed by Ch. 16,, Criminal P.C., to cases falling under the section. To start upon a protracted inquiry in 6uoh matters would defeat the very object for which the Section seems to have been tnacted. All that appears necessary to take action under the seotion, is to examine the applicant on oath in support of bis 'complaint' of the unlawful detention of a woman or a minor girl, as the case may be, for an unlawful purpose, and issue a notice to the non.applicant to show cause against the complaint and to produce the woman or the girl 'before the Court to be dealt with according to law.' That this is the usual procedure adopted in cases falling Under Section 491, Criminal P.C., is dear from in re Saithri (1892) ILR 16 Bom 307. The proceedings Under Sections 491 and 552 being, in some measure, analogous, the same pro. cedure, should in my opinion, be followed in cases falling under both the sections, in the absence of any especially prescribed by the Code.

6. In the above passage the learned Counsel underlines that the complainant should be examined on oath. I am in respectful agreement with what the learned Additional Judi. cial Commissioner has observed about the nature of the proceedings, but the above passage does not support the contention that an affidavit properly sworn will not be tantamount to a complaint on oath within the meaning of the section. Learned Additional Judicial Commissioner was not dealing with a case where a oomplaint has been supported by an affidavit on oath. In these circumstances I am unable to hold that the order of the learned Distriot Magistrate was erroneous.

7. Next, I may deal with the application Under Section 561A, Criminal P.C. learned Counsel submitted that this application has been moved by none other than Smt. Homli herself and, therefore, this Court should quash the proceedings holding that she was not in un. lawful custody as alleged, Now the proceedings before the learned District Magistrate partake of the character of the habeas corpus proceedings and unless there are unusual circum. stances I will not allow leap frogging of the proceedings before the learned District Magistrate. There should be no difficulty in Smt. Homli herself appearing before the learned District Magistrate and letting him know what she wants.

8 Lastly, learned Counsel submitted that there was apprehension that if Smt. Homli were to go to attend the Court of the Distriot Magistrate she may be carried away or she may be otherwise influenced by the other party. learned Counsel for the State has stated at the bar that should Smt, Homli have any such apprehension she should apply before the District Magistrate who will be making adequate arrangements for the safe conduct of the girl to and from the Court to the place where she may be staying. In these circumstances I am not inclined to interfere with the order in exercise of the inherent powers of this Court Under Section 561A, Criminal P.C0.

9. Both the applications fail and are hereby dismissed.


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