Whether Magistrate can issue a search warrant U/S 97 Cr.P. C. to search for the person confined outside the territorial jurisdiction of said Court?

Madhya Pradesh High Court

Gajendra

vs

Smt. Jayshree on 3 November, 2015

CRR-2358-2015
(GAJENDRA Vs SMT. JAYSHREE)

03-11-2015

Shri Rohit Jain, counsel for the applicant.
Shri G.S.Thakur, PL for respondent No. 3/State.

Heard on I.A. No.20384/2015, an application for condonation of delay in filing the present revision. After considering the reasons mentioned in the application, delay of 146 days in filing the present revision is hereby condoned. The application is hereby disposed of. Heard on admission.

The applicant has preferred the present revision against the order dated 21.1.2015 passed by First Additional Sessions Judge, Burhanpur in Criminal Revision No. 119/2014 whereby the order dated 31.7.2014 passed by the SDM, Burhanpur under Section 97 of the Cr.P.C. in Criminal Case No. 38/2014 was reversed and the application under Section 97 of the Cr.P.C. filed by the applicant was dismissed. The facts of the case, in short, are that the applicant was married with respondent No. 1 and a daughter/respondent No. 2 was born 5 years back. The applicant moved an application under Section 97 of the Cr.P.C. before SDM, Burhanpur that for the last 2 years, the applicant and respondent No. 1 were living separately. When respondent No. 1 left the house of the applicant, she took respondent No. 2 with her. Initially, respondent No. 2 was studying in Nehru Montessori Higher Secondary School, Burhanpur whereas now she is studying at village Bhadgaon in Marathi language. Respondent No. 2 has been deprived from affection and care of her father and she was not taking food properly, therefore, it was prayed that search warrant be issued and custody of the child/respondent No. 2 be given to the applicant. The SDM had issued a search warrant vide order dated 6.8.2014 so that the respondent No.2 be produced before the SDM, Burhanpur. In the meantime, respondent No. 1 went in a revision by challenging the order dated 8.7.2014 passed by the SDM, Burhanpur by which the application under Section 97 of the Cr.P.C. was registered in the Court of SDM, Burhanpur. The revisionary Court set aside the proceedings under Section 97 of the Cr.P.C.

After considering the submissions made by the learned counsel for the parties, it would be apparent that if the applicant was interested to get the custody of his daughter then he should have moved an application before the Court under the Guardian and Wards Act. A search warrant under Section 97 of the Cr.P.C. can be issued if a person is confined. When respondent No. 1 took her daughter/respondent No. 2 with her two years back and daughter was residing with her mother then prima facie due to silence of the applicant for two years, it cannot be said that respondent No. 2 was confined by the respondent No. 1 and, therefore, the SDM, Burhanpur was not competent to entertain such application under Section 97 of the Cr.P.C. Secondly, respondent No. 1 along with respondent No. 2 was residing at village Bhadgaon, District Jalgaon, Maharashtra and, therefore, the SDM, Burhanpur had no jurisdiction to issue any search warrant out of the territory of State of Madhya Pradesh, hence the proceedings initiated before the SDM, Burhanpur was without any jurisdiction. Learned counsel for the applicant has placed his reliance upon the order passed by Single Bench of this Court in “Ramesh Vs. Smt. Laxmi Bai” – [1997 (I) MPWN Note 53], in which law laid by the Single Bench relating to custody of the child. In that order, it was not considered as to whether the SDM can issue a search warrant under Section 97 of the Cr.P.C. against the provision of Section 97 of the Cr.P.C. itself, hence the order passed in the case of Ramesh Vs. Smt. Laxmi Bai (supra) is not at all applicable in the present case.

On the basis of the aforesaid discussion, the learned Additional Sessions Judge has rightly set aside the order passed by the SDM. No illegality or perversity is visible in the impugned order passed by the First Additional Sessions Judge, Burhanpur, hence there is no reason to accept the criminal revision filed by applicant Gajendra Mahajan against the impugned order.

Consequently, the revision filed by the applicant is hereby dismissed at motion stage.

A copy of the order be sent to the Courts below for information.

(N.K. GUPTA) JUDGE

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