SECTION 97 & 98 of CrPC: A KNIGHT IN SHINING ARMOUR
Author: BINI.PB (Govt Law College Ernakulam, Kerala)
Co-Author: NAJAD .P (Govt Law College Ernakulam, Kerala)
INTRODUCTION
The Code of Criminal Procedure, 1973 is a procedural criminal law. The Code extends to the whole of India. The Code is intended to provide a mechanism for the enforcement of Criminal law. The Code creates necessary machinery for detection of crimes, arrest of suspected criminals, collection of evidence, determination of guilt, or innocence of the suspected person and the imposition of proper punishment on the guilty person. Section 97 of the Code covers the search of a person whose confinement amounts to an offence. This section comes into operation when a person is wrongfully confined under section 340 of Indian Penal code. Section 97 of the code provides that if any District Magistrate or Magistrate of the first class has a reason to believe that any person is confined and such confinement amounts to an offence, he may issue a search warrant and upon such warrant a direction can be given for the search of the person so confined. Section 98 of the code deals with the aspects involved in the restoration of an abducted woman including a female child under the age of eighteen. In India, illegal detention is a well known evil, and it has for decades, snatched the decorated fundamental rights which the Indian Constitution guarantees to its citizens. Even if the remedy against these infringements are available at the lower courts, petitioners are often compelled to approach the higher court or they are simply unaware about the effective and speedy justice available at their doorstep. So here we emphasize some of the provisions in the Code which are in fact a Shining armour in the armoury of a lawyer or a citizen but long neglected.
SCOPE OF SECTION 97
Section 97 of the Code of Criminal Procedure deals with the search for the persons wrongfully confined. Section 97 reads as follows;
“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”.[i]
Before a warrant is issued under this section the Magistrate has to satisfy himself that a person has been wrongfully detained.[ii]The Magistrate has jurisdiction to issue a search warrant to search for the person wrongfully confined beyond the local limits of his jurisdiction. Whenever a Magistrate receives a complaint that a person has been arrested within his jurisdiction but has not produced before him within 24 hours, and is being detained beyond 24 hours of arrest, he can issue a search warrant under section 97 of the Code of Criminal Procedure 1973. This power is independent of and distinct from power flowing from clauses (1) and (2) of article 22 of the Constitution.[iii][3] All that has to be done to make it effective is to follow the procedure prescribed in section 78 or 79 of the Code.[iv] A warrant under section 97 could be issued, when a child was in the lawful custody of the mother and the father of the child removed it from such custody by using criminal force.[v] Where the child of 9 years was living with his own father, it was held that section 97 of the Code of Criminal Procedure, 1973 was not attracted. The court added that this was not to have any effect upon the merits of the controversy regarding the custody of the child in the pending proceeding under the Guardian and Wards Act, 1890.[vi]
WHAT DOES SECTION 98 SPECIFIES?
Section 98 in The Code of Criminal Procedure, 1973 provides the power to compel restoration of abducted females. It states that, “upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub- divisional Magistrate or Magistrate of the first class 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 compliance with such order, using such force as may be necessary.”
Where a woman or a female child under the age of eighteen years has been abducted or unlawfully detained for an unlawful purpose, a District Magistrate, a Sub divisional Magistrate or a Magistrate of the first class may restore the woman to her liberty or the female child to her proper custody. Necessary force may be used in carrying out the order. Both the detention and the purpose must be unlawful. The exclusion of male children goes to show some special reference to the sex of person against whom it has been entertained. Section 97 and 98 cannot be used by one parent even if he is a legal guardian to obtain the custody of his minor children from the other parent. The proper remedy in such a case is to proceed under the Guardians and Wards Act.[vii]
Section 97 may be compared with this section. The former refers to “any person confined” wrongfully. But section 98 enables the Magistrate concerned to act in case of “abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose.”
A Magistrate cannot compel an adult woman to go with her husband against whom she had expressed her unwillingness, rather he should set her free to go wherever she likes. This was held by the Court in the case of Lokmal v. Vivek.
Section 98 of the Code is applicable only when there is a complaint regarding abduction or unlawful detention of a woman or of a female under the age of 18 years. Under this section, both the detention and the purpose must be unlawful. Detention of a minor girl by a person not legally entitled to her custody, against the will of her guardian, is unlawful within the meaning of this section.
The detention of a girl by the father in his house against the will of her husband does not amount to unlawful detention, unless it is shown that the detention was contrary to the wish of the girl. The relatives of the women who are helping her to procure divorce cannot be charged for unlawful detention.[viii]
WHEN PERSONAL LIBERTY IS AT STAKE
“…provisions of section 97 and 98 of the Code of Criminal Procedure are identical with the provisions of Article 32 of the Constitution of India as there are concerns with life of person and liberty of the person.”[ix]
‘Ubi jus ibi remedium’, there is no wrong without a remedy. The law wills that in every case where a man is wronged he must have a remedy. Here in the case of wrongful confinement whether it is by any Police or any other person, the right to life and personal liberty is being violated grossly. The cause is real and the concern is genuine. In a country like India where illegal custody by the Police is an everyday news, the remedy sought must be effective and speedy. But the bad reality is that the petitioners are compelled to rush into constitutional courts with writ petitions for getting their kith and kins back from wrongful confinement even when they have effective and cheaper remedies available at lower courts. In our country cases go on for years, even sometimes for decades. Speedy case disposal is important to safeguard the miscarriage of justice. Section 97 of the Code of Criminal Procedure 1973 deals with search of a person whose confinement amounts to an offence. Whenever a person is arrested by the police and is not produced before the Magistrate concerned, then the custody becomes illegal under section 340 of the Penal Code. And the Magistrate can order for the immediate production of the corpus before him and take needed actions after putting his mind into the matter. If the Police and the Magistrate take such applications filed by the complainants seriously, then they will not be denied effective access to Justice and also unwanted journeys to the High Courts and Apex Courts.
It cannot be said that a Citizen ‘sheds off’ his fundamental right to life the moment police arrests him. Nor can it be said that the right to life of a citizen can be put in ‘abeyance’ on his arrest. The maxim ‘solus republicae suprema lex’ (safety of the state is the supreme law) and ‘solus populi suprema lex’ (the safety of the people is the supreme law) must exist side-by-side. The illegal custody by the police in the name of preventive arrest is also a grave concern but the constitution have a little to say. Article 22 of the Constitution provides the right against arrest and detention in certain cases and is also understood as an extension of the right to life and personal liberty enshrined under Article 21. Article 22(2) specifically provides that Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the time limit without having the authorisation from the Magistrate.Timely and speedy delivery of justice is an integral part of Human right and the denial of which is a challenge to the public confidence in the administration of justice.[x]
CONCLUSION
In a pre-constitutional India, the administration of criminal justice was governed by the english code of criminal procedure and the evidence act. Therefore, the basis of the notion behind the protection of right to life and liberty of a person by the overreaching limb of the magistrate can be traced back to any system of jurisprudence. Section 78 and 79 of the Code is clear evidence for this, that those provisions empower the magistrate to reach out even beyond his jurisdiction to search for the persons wrongfully confined and to produce the person so confined before him. As mentioned above, section 97 and 98 of the Code is similar to that of Art.32 and Art.226 of the Indian constitution as it protects the person’s fundamental rights. So here, the legislative wisdom is transparent that they intended to provide an effective and cheaper remedy available for the citizens in their vicinity. And indeed it was not their intention that the people residing at the remote villages in the country should travel miles to the high courts in the far away city or to the Supreme Court in the National capital for getting justice. Hence the long forgotten powers of the magistrate must be restored in the minds of citizens as well as the legal fraternity to strengthen the judiciary and to ensure that the rights of the people are protected.
[i] Section 97, Code of Criminal Procedure, 1973
[ii]Anura Begum v. Habilmea, (1962) 2 Cri LJ 590
[iii] Poovan v. Sub-Inspector of Police, Aroor, 1993 Cr LJ 2183(Ker).
[iv] Kochukochu Bhaskaran, (1954) TC 296
[v] K. Pareekutty v. Ayyikkal Ayissakkuty, 1978 Cr LJ NOC 98; Purushottam Wamanrao Thakur v. Warsha, 1992 Cr LJ 1688 (Bom)
[vi] Ramesh v. Laxmibai, (1998) 9 SCC 266: 1999 Cr LJ 5023
[vii] Ratanlal & Dhirajlal, The Code of Criminal Procedure, Twenty First Edition, 2013.
[viii] Search for persons wrongfully confined and abducted females (Section 97 of CrPc) (shareyouressays.com)
[ix] Kavidas v. Varsha, Criminal Revision Application No. 9 of 2021, decided on 18-03-2021
[x] Hussain v. Union Of India AIR 2017 SC 1362
