The discussion of CRPC Sec 97 and a Writ of Habeas Corpus recently came into light in supreme court of India, when a husband file a writ of habeas corpus contending that his wife is allegedly and wrongfully detained by his family members because they are not happy with the marriage and during the proceedings, court remind his advocate about the crpc section 97 which is identical to Art 32 of the Indian Constitution. Court ask petitioner to move an application under sec 97 of crpc in District court and after that petitioner with the permission of the court withdraw the petition.
What is Section 97 of CRPC?
Search for persons wrongfully confined. 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 whom 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.
When an application file under a section 97 crpc, before issuing a search warrant the Magistrate (executive or judicial) must be satisfied that the person has been wrongfully confined with the material fact and circumstances and if that allegedly confined person accept that he/she is not allegedly confined in front of the magistrate than magistrate have no reason to make order in that circumstances. However, magistrate can make a detail inquiry for necessary decision.
The provisions contained in Section 97 may be invoked by a father to rescue his married daughter from wrongful confinement by her in-laws. Where a person was wrongfully confined by gherao, a warrant could be issued under Section 97 for his rescue by intervention of police. The Supreme Court in Ramesh v. Laxmi Bai has ruled that the provisions of Section 97 are not attracted in a case of the mother’s prayer for search of her child son who was living with his own father. This section also applies to cases where a person is wrongfully confined irrespective of the fact whether that person is or is not the victim of kidnapping or abduction.
What is Writ for Habeas Corpus?
Habeas corpus, an is a writ, issued by a court directing one who holds another in custody to produce the person before the court for some specified purpose. Although there have been and are many varieties of the writ, the most important is that used to correct violations of personal liberty by directing judicial inquiry into the legality of a detention. The habeas corpus remedy is recognized in the countries of the Anglo-American legal system but is generally not found in civil-law countries, although some of the latter have adopted comparable procedures.
A writ of habeas corpus (which literally means to “produce the body”) is a court order demanding that a public official (such as a warden) deliver an imprisoned individual to the court and show a valid reason for that person’s detention. The procedure provides a means for prison inmates, or others acting on their behalf, to dispute the legal basis for confinement. Habeas corpus has deep roots in English common law.
Often, the court holds a hearing on the matter, during which the inmate and the government can both present evidence about whether there is a lawful basis for jailing the person. The court may also issue and enforce subpoenas (a written order) in order to obtain additional evidence.
In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India. Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty etc. Merely providing for Fundamental Rights is not sufficient. It is essential that these Fundamental Rights are protected and enforced as well. To protect Fundamental Rights the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated. At the same time, the two articles give the right to the highest courts of the country to issue writs in order to enforce Fundamental Rights.
PROCEDURE BEFORE APPLYING UNDER CRPC SEC 97 AND WRIT OF HABEAS CORPUS?
Before going into any of the legal procedure one has to reassure and confirmed with the circumstances. In case of sec 97 of crpc, one should have the material fact and good reason to believe the fact. Than he/she can complaint in local police station or with Superintendent of Police. After all this one can go and simply file with the help of the advocate an application under section 97 crpc before the concern magistrate.
In case of Habeas Corpus, there is no need to file a complaint under SHO or in any police station. One can move directly to the High Court and seek direction against the person or authorities who unlawfully detain the person.
CASES LAWS IN SEC 97 CRPC:
In Mira Boro vs. Token Boro and others, 2013
The petitioner- No.1, herein, Smt. Mira Boro filed a petition, u/s 97 Crpc, on 09-01-2013, before the Court of learned Chief Judicial Magistrate, Sonitpur, whereupon, Misc. Case No. 4 / 2013 was registered, praying to register a case and issue a Search Warrant against her husband Sri Champak Boro and her in-laws – the revision petitioners, namely, Sri Tokan Boro ( father-in-law), Smt. Amal Prabha Boro ( mother-in-law) and Smt. Damayanti Boro ( sister-in-law) for recovery of her two minor children –son and daughter, who have been wrongfully confined. It has been stated in the petition that her marriage with Sri Champak Boro was solemnized in the year, 2008 performing Hindu rites and customs and both consummated their marriage as husband and wife. Out of their wedlock, two children were born, the first one, is a son, namely, Prantik Boro, born on 16-01-2009, that is 4 years, and the second one, is a milk suckling daughter, namely, Sayanika Boro, presently aged about 2 ½ years. Their conjugal life did not last long peacefully. After some days of their marriage, her husband and the in-laws – the revision petitioners started to subject her to cruelty, physical and mental, on demand for money from her parental home to purchase movable and immovable properties. The petitioner was, however, silently bearing with the pain of cruelty, perpetrated on her, in the interest of welfare of her two children, and continued her marital tie. However, on 30-12-2012, midnight, the revision petitioners and her husband united assaulted her severely and drove away out of her matrimonial home, snatching back her two minor children. The petitioner took shelter in the house of the Gaonburah Sri Khagen Deuri and narrated the entire incident to him. On the following day, morning, when she accompanied by the Gaonburah went to the house of the revision petitioners and her husband to bring back her children, they threatened her with dire consequences and since then, she has been taking shelter at her parental home. Later on, the petitioner filed an against her husband Sri Champak Boro and thereupon, Rangapara PS Case No. 225/2012, u/s 498 A of IPC was registered and the police forwarded her husband, under arrest, to the Court. According to the petitioner, the act of wrongful 2 confinements of her minor children by her husband and the in-laws, afore named, is detrimental to their health and all round welfare. On receipt of the above petition, the learned Chief Judicial Magistrate inquired into the complaint and recorded the statements of the petitioner and her one witness under Section 200 / 202 Crpc and on being satisfied, directed to issue Search Warrant to recover the two minor children from the custody of the revision-petitioners and to produce them before his Court, keeping the question of their temporary custody for consideration later on, and further, directed to issue summons to the revision-petitioners and her husband, u/s 343/506/34 IPC, fixing 02-02-2013 for appearance and report on Search Warrant.
CASES LAWS IN Habeas Corpus:
- K. GOPALAN VS. STATE OF MADRAS, 1950
In this particular case the petition was made by Mr. A. K. Gopalan under Article 32(1) of the Constitution of India, in pursuance of an order made under the Preventive Detention Act, 1950, a writ of Habeas Corpus was filed against his detention. Mr. A.K. Gopalan was a communist leader, and since December 1947 he had been under detention, as imprisonment under ordinary criminal laws he was convicted & sentenced. However, these convictions were overruled by the court. A.k. Gopalan when detained, on 1st March 1950, was served upon an order by the State Government of Madras, made under section 3 (1) of the particular Act, which confers upon the State or Central Government. After then he challenged in court the legitimacy of the order under the Act on the ground that the Act violates human’s fundamental rights as the provisions given under Articles 13, 19 & 21, and the provisions of this Act 4 of 1950 of Madras State are not in conformity with Article 22 of Indian Constitution. Mr. Gopalan also contended that the order issued was malafide.
After considering the issue and the fact, It was held by the Supreme Court of India, that any of the sections of the Preventive detention Act, IV of 1950 has infringed the provisions of Part III of the constitution barring Section 14 of the Act, restricting the declaration of the grounds of detention. Section 14 of the Preventive Detention Act, IV of 1950 was declared Ultra Vires; nonetheless the declaration by the court did not affect the validity of the act as a whole.
- SUNIL BATRA VS DELHI ADMINISTRATION, 1978.
The petitioner, a convict under a death sentence sent a letter to one of the Judges of this Court complaining about the torture which is being faced by prisoners by the Police authorities and other inmates. The letter stated the concerns for the prisoners well -being and the exercise of brutality on them. At a later stage, the letter was being converted into a “Writ of Habeas Corpus” proceeding in front of this Court under Article 32 of the Constitution.
Under Article 32 and Article 226, the Court has the power to intervene and relieve the prisoners whose fundamental rights are snatched away. Thus, the Court affirms that where the rights of the prisoner either under the Constitution or under other law are violated the writ power of the Court should run to his rescue. The Apex Court held that Prem Chand, the prisoner has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party. The Honorable Judges also showed their concern for prisoner reform and implementation of necessary provisions to enable the prisoners with the facilities where they can raise their complaints and grievances regarding the infringement of their fundamental rights. Thus, the petition was allowed directing writ to issue including the compliance of all directives as given by the Apex Court.
As we understand that the scope of section 97 crpc and writ for Habeas Corpus is almost same. But in reality people are using shortcut and directly approach into High Court and Supreme Court. Recently Honorable Supreme Court Judge Justice Maheshwari rightly said that “Section 97 Crpc has become dead letter because of this Habeas Corpus Shortcut” and because of this burden of the upper court increases and thousands of case of habeas corpus are pending in the upper court. The search warrant under sec 97 of crpc can be issue by the Magistrate after consideration but as per the trend of filling the writ petition, sec 97 crpc become a dead letter. It is need of the hour that advocates should take recourse to sec 97 crpc and avoid shortcuts and overburdening of the upper court.