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1973 DIGILAW 189 (MAD)

Kanhaiyalal Chandak v. S. Dorairaj

1973-03-23

P.R.GOKULAKRISHNAN

body1973
Order.-One Mr. Dorairaj has filed M.P. No. 16 of 1973 before the Sixth Presidency Magistrate, Saidapet, Madras, under section 100, Criminal Procedure Code, against Kanhaiyalal Chandak for the purpose of issuing a warrant to the Inspector-General of Police, Tamil Nadu, Madras-4 to search for one Meera Chandak, daughter of Kanhaiyalal Chandak at the Holy Angles Convent, Pondy Bazaar, T. Nagar, Madras-17, recover the said Meera Chandak and restore her to the petitioner. There is a specific allegation that Meera Chandak is aged more than 18 years and the respondent herein has lawfully married her under Suyamariyathai form. It has also been stated in the petition that the marriage took place on 20th February, 1973 and 3 years prior to the marriage the respondent and Meera Chandak were in love. The respondent herein has alleged in M.P. No. 116 of 1973 that Meera Chandak is treated cruelly and the petitioner herein is trying to get her married against her wish to some other man. The Sixth Presidency Magistrate, Saidapet, Madras has issued a search warrant on 28th February, 1973 to the Inspector-General of Police, to search for the girl at the Holy Angels Convent and at the petitioner’s house. Since the girl was not found in these places, another warrant was issued by the Sixth Presidency Magistrate on 1st March, 1973 to the clinic of Sarada Menon wherein it is stated that Meera Chandak was being kept for observation. On 2nd March, 1973 at 5.45 P.M. the girl was traced and taken from the private Hospital by the R.I. Inspector and produced before the Court. The Sixth Presidency Magistrate directed petitioner to execute a bond and produce the girl whenever she is required by the Court. Aggrieved by the said direction, Kanhaiyalal Chandak, the petitioner herein has filed this petition for calling for the records and to quash the proceedings in M.P. No. 16 of 1973 on the file of the VI Presidency Magistrate, Saidapet, Madras. Mr. S. Mohan, the learned Counsel appearing for the petitioner submitted that the respondent being a Christian he could not have married the girl under Suyamariyathai Marriage Act, that is Tamil Nadu Act XXI of 1967. He has also submitted that the first respondent herein has no locus standi to file the petition under section 100, Criminal Procedure Code. 2. Mr. S. Mohan, the learned Counsel appearing for the petitioner submitted that the respondent being a Christian he could not have married the girl under Suyamariyathai Marriage Act, that is Tamil Nadu Act XXI of 1967. He has also submitted that the first respondent herein has no locus standi to file the petition under section 100, Criminal Procedure Code. 2. No doubt the investigation is pending against the respondent herein under section 363, Indian Penal Code for the alleged kidnapping of the girl, Meera Chandak, on the allegation that she is a minor. The respondent in his counter-affidavit before this Court in Criminal M.P. No. 893 of 1973 has specially stated that Meera Chandak is more than 18 years, that they were in sincere love for more than 3 years, that her school record will clearly prove that she was born on 21st June, 1954. He has again alleged in his affidavit that she is being treated cruelly for the purpose of compelling her to get married to the person of the petitioner’s choice. 3. Section 100 of the Criminal Procedure Code states as follows: “100. If any Presidency Magistrate, Magistrate of the first class or Sub-Divisional Magistrate 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.” 4. It is clear from the averment made by the respondent both in the petition M.P. No. 16 of 1973 and also in M.P. No. 893 of 1973 on the file of this Court that he is aggrieved because of the fact that Meera Chandak is being treated cruelly. It is the case of the petitioner that there is a mental depression for this girl and she is being kept under observation at the private clinic of one Dr. Sarada Menon. From the allegations contained both in the petition and from the attendant circumstances it is but natural that there are enough reasons to believe the girl is confined under such circumstances which will amount to an offence. Sarada Menon. From the allegations contained both in the petition and from the attendant circumstances it is but natural that there are enough reasons to believe the girl is confined under such circumstances which will amount to an offence. That is why the Sixth Presidency Magistrate, Saidapet, Madras has issued a search warrant. 5. Mr. S. Mohan, quoted a decision reported in Banarsi Lal v. Neelam1. In that decision at para. 13 it has been held as follows: “Section 100, Criminal Procedure Code is of course a provision of emergency, but this by itself does not mean that the Magistrate acting under this section is to issue warrants of search automatically without applying his judicial mind to allegations contained in the application and to the other material which may be available to him. The expression”reason to believe“which is the real core of this section, implies a belief in judicial mind arrived at after considering all the available material with a sense of responsibility and effort of mind, without ignoring, so far as possible, the other side of the controversy. This is a judicial duty and its performance rules out a superficial and arbitrary approach. The Magistrate must have reasonable grounds to believe that the confinement in question is such that it amounts to an offence. In my opinion, the impugned order of the learned Magistrate is difficult to sustain on the existing record and I am inclined to agree with the learned Additional Sessions Judge and quash the order issuing the search warrants”. As for as the present case is concerned there is a specific allegation by the petitioner in M.P. No. 16 of 1973 that Meera Chandak is married to him and that she is aged more than 18 years. The attendant circumstances clearly show that subsequent to the police getting her from the custody of the respondent herein she has been put to the Holy Angels Convent and finally admitted in a private mental nursing home run by Dr. Sarada Menon. The report of the Doctor also states that the girl is mentally depressed and that she is under observation. The Sixth Presidency Magistrate taking into consideration all those aspects and also taking into consideration the allegation made by the respondent herein that the petitioner herein is trying to get her married to the person of his own choice, has ordered issue of warrant. The Sixth Presidency Magistrate taking into consideration all those aspects and also taking into consideration the allegation made by the respondent herein that the petitioner herein is trying to get her married to the person of his own choice, has ordered issue of warrant. If in case it is found that the girl is a major and by that time if she is forced to marry a person of the choice of the petitioner, the damage done cannot be rectified and in the interests of justice there is no difficulty in coming to the conclusion that the issue of warrant made by the Sixth Presidency Magistrate, Madras, on the petition under section 100 of the Criminal Procedure Code, by the respondent therein is not illegal. 6. In R.P. Kapur v. Stale of Punjab2. The Supreme Court has clearly held that no petition can be entertained under section 561-A of the Criminal Procedure Code, for quashing the proceedings unless there is a manifest legal bar against the institution or continuance of the criminal proceedings in respect of the offence alleged or where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged or where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. 7. In view of the above said Supreme Court decision there is absolutely no ground made out by the petitioner herein to call for the records and quash the proceedings made in M.P. No. 16 of 1973 on the file of the VI Presidency Magistrate, Saidapet, Madras. The petitioner may have the genuine grievance. If in case the Magistrate hands over the custody of the girl to the respondent herein, which I am sure, will not he done, since it is alleged that the investigation for the offence under section 363, Indian Penal Code, against the respondent herein is pending, the Magistrate is at liberty to safeguard the interest of the respective parties by issuing appropriate orders in M.P. No. 16 of 1973. 8. With these observations the Criminal M.P. No. 765 of 1973 is dismissed.