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Rajendra Nath Mondal Vs. Anukul Chandra Biswas - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Ref. No. 68 of 1956
Judge
Reported inAIR1957Cal139,1957CriLJ365
ActsCode of Criminal Procedure (CrPC) , 1898 - Section 100
AppellantRajendra Nath Mondal
RespondentAnukul Chandra Biswas
Appellant AdvocateNilmoni Goswami, Adv.
Respondent AdvocateArun Kumar Dutt, Adv.
Excerpt:
- .....one rajendra nath mondal applied to the sub-divisional magistrate of chinsurah for the issue of a search warrant for discovery of his wife who was said to have been detained by the girl's father at a place in the district of nadia. the allegations by the applicant husband were that parvati, a minor, had been taken away by her father, anukul chandra biswas about a year and a half prior to the date of the application, in her father's house parvati gavebirth to a child and she was thereafter detained against her wishes by the father. on receipt of this application the sub-divisional magistrate, chin-surah, directed the issue of a search warrant under section 100 of the code of criminal procedure for recovery of the girl. the opposite party anukul chandra biswas appeared before the.....
Judgment:
ORDER

Debabrata Mookerjee, J.

1. This is a reference made by the Additional Sessions Judge of Hooghl recommending that a search warrant under Section 100 of the Code of Criminal Procedure for discovery of a minor girl be quashed.

2. The facts briefly stated are that one Rajendra Nath Mondal applied to the Sub-Divisional Magistrate of Chinsurah for the issue of a search warrant for discovery of his wife who was said to have been detained by the girl's father at a place in the district of Nadia. The allegations by the applicant husband were that Parvati, a minor, had been taken away by her father, Anukul Chandra Biswas about a year and a half prior to the date of the application, In her father's house Parvati gavebirth to a child and she was thereafter detained against her wishes by the father. On receipt of this application the Sub-Divisional Magistrate, Chin-surah, directed the issue of a search warrant under Section 100 of the Code of Criminal Procedure for recovery of the girl. The opposite party Anukul Chandra Biswas appeared before the Sub-Divisional Magistrate, Chinsurah, and made certain representations with a view to inducing the Magistrate to recall the search warrant. Several allegations were made against the husband who it was said had been living in the house of one of his fathers-in-law he having taken several wives. A further objection was taken that the Sub-Divisional Magistrate, Chinsurah, had no jurisdiction to entertain the application under Section 100, Cr. P. C. The learned Magistrate was not impressed with any of the objections raised and he allowed the order of search warrant, which had already been made to stand. The petitioner thereafter applied to the Sessions Judge, Hooghly for a reference to this Court with the recommendation that' the warrant be quashed. The matter was dealt with by the Additional Sessions Judge who has made this reference recommending that the order of the' Magistrate directing the issue of the warrant be set aside.

3. The learned Judge seems to be of the view that it was not quite clear whether' the girl was a minor on the date of the application since her age was not mentioned in it by the opposite party. It was also observed that the materials appeared to be insufficient for the Magistrate's satisfaction that there was any foundation for the allegations made by the applicant. The learned Judge took the view that the order directing the issue of search warrant for discovery of the girl was bad by reason of the fact that the Sub-Divisional Magistrate of Chinsurah had no jurisdiction to issue a search warrant for discovery of a girl who was said to be detained outside the jurisdiction of the Magistrate's Court. According to the husband the girl was being detained at a place within the jurisdiction of the Nadia Court and that being so, the learned Judge thought that the order directing the issue of the warrant was without jurisdiction.

4. I am afraid I cannot accept any of the grounds put forward by the learned Judge as a satisfactory ground for accepting the reference. Whether she was a minor or not or whether sufficient details were not incorporated in ,the application for the issue of a warrant for the discovery of the girl are primarily matters for the Magistrate. If however there are materials upon which a Magistrate can reasonably come to the conclusion that the conditions! necessary to be fulfilled for the issue of a warrant for discovery of a person wrongfully confined exist, then it is for the Magistrate before whom the application is made to make up his mind' whether a warrant should at all issue. The mere non-mention of the precise age of the girl will not, in ray view, vitiate the order for issue of search warrant provided the requisites mentioned in Section 100 are to be found in the application inviting the Magistrate to make the order for discovery.

5. As regards the alleged absence of bona fides on the part of the husband I think, the best judge would be the Magistrate to decide whether a particular application before him was a bona fide or a mala fide on. A magistrate when invited to takeaction under Section 100, Cr. P. C. has to satisfy himself that there exist materials to induce his belief that the person is confined in such circumstances as to make the confinement amount to an offence. This is the requisite condition which must be fulfilled before action can properly be taken under Section 100. The allegations need not reach that precision and particularity so as to establish definitely that the confinement is in fact an offence. It would be enough if there are materials for the Magistrate's satisfaction that the confinement amounts to an offence. In my view, there is some difference between saying that circumstances establish confinement and circumstances making the confinement amount to an offence. There can be no doubt that wide words have been purposely employed by the legislature to give adequate powers to the Magistrate to take effective action in appropriate cases. The learned Additional Sessions Judge appears to be of the view that there must not only be foundation for the belief that an offence may have been committed, but a clear proof of its commission -- a view which, I am afraid, must be pronounced wrong.

6. Reference may be made in this connection to the words used in Section 552 of the Cr. P. C. which gives power to Magistrates to compel restoration of abducted females. That section provides that there must be a complaint made before certain specified Magistrates on oath as respects abduction or unlawful detention of a woman or of a female child under 18 years for any unlawful purpose and the Magistrate upon being persuaded that such abduction or detention has taken place may order immediate restoration of the woman or the child concerned. The requirements' of Section 552 are, in my view, much more stringent than those of Section 100 which deals with the issuance of a warrant for discovery of a person prima facie wrongfully confined. Quite obviously under Section 100 of the Code a person wrongfully confined need not be a female. It would be enough if circumstances have been proved to show that a person has been confined' under such circumstances as to make the confinement amount to an offence, whereas under Section 552 of the Code the power extends only to the restoration of abducted females. Thus there can be no doubt that different circumstances have been envisaged in Sections 100 and 552 and the power given under the former section is much wider than that given under the latter.

7. The main ground of reference is that the chinsurah Magistrate had no jurisdiction to entertain the application under Section 100 inasmuch as no wrongful confinement had taken place within his jurisdiction. In my view, this is clearly wrong. In order that power may be exercised under Section 100 of the Code, the only requirements are confinement of a person under circumstances that it amounts to an offence and that the application is made before a Presidency Magistrate, a Magistrate of the 1st class or a Sub-Divisional Magistrate. The section does not require that the confinement amounting to an offence has to take place within the local limits of the jurisdiction of the Magistrate who is approached to issue a warrant. It would be enough if a confinement has taken place amounting to an offence and if, the Magistrate approached to make an order is of one or other of the denominations specified in the section. The learned Judge seems to think that thewrongful confinement in the present case being alleged to have occurred within the jurisdiction of the Nadia Court, the Chinsurah Court was deprived of power to issue a search warrant for discovery under the section. In my view, if that was the real purport of Section 100, express words would have been used to make it clear that it is only the Magistrate within whose jurisdiction the confinement takes place has power to issue a warrant for discovery of the confined person. On the other hand, the language employed in Section 100 is quite wide and it has been clearly provided that upon execution of the warrant, the person confined, if' found, has to be taken before a Magistrate who is given power to make such order as may be required in the circumstances of the case. There is thus no basis for the view that the Magistrate misdirected himself in issuing the search warrant and conferring upon himself a jurisdiction which had not been vested in him by law. In my view, the warrant was a perfectly valid One and should have been allowed to be executed in accordance with law.

8. The result, therefore, is that this referenceis rejected and the order of the Magistrate issuingthe search warrant will take effect.


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