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Calcutta High Court · body

2007 DIGILAW 2 (CAL)

MOUSUMI MODAK v. SHIBABRATA MODAK

2007-01-04

ASHIM KUMAR ROY

body2007
( 1 ) IN this criminal revisional application petitioners challenged an order dated March 4 2005 passed by the learned Sub-divisional Magistrate, krishnagar Sadar in connection with an application under Section 97 of the code of Criminal Procedure. ( 2 ) HEARD, Mr. Gautam Lahiri, learned Advocate appearing on behalf of the petitioners and Mr. Rabi Shankar Chatterjee, learned Advocate appearing on behalf of the State. ( 3 ) NONE appears on behalf of the opposite party No. 1 inspite of service. Let the affidavit of service be kept with the record. ( 4 ) I have carefully perused the impugned order as well as the lower court records. It appears from the impugned order that learned Magistrate, upon receipt of an application under Section 97 of- the Code of Criminal procedure, examined the petitioners and recorded the allegations made by them and then directed issuance of show cause notice against the opposite party. ( 5 ) THE impugned order has been passed by the learned Court below in exercise of its power conferred on it under Section 97 of the Code of Criminal procedure. The provision of Section 97 of the Code of Criminal Procedure is quoted below: "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. " ( 6 ) READING, the aforesaid provisions, it is abundantly clear that before assuming jurisdiction under Section 97 of the Code of Criminal Procedure the learned Magistrate must have the reasons to believe from the materials before him that the person allegedly confined, is confined in such a circumstance that such confinement amounts to an offence. ( 7 ) IN my view, without recording his reason to believe as aforesaid the learned Magistrate has no jurisdiction to pass any order in exercise of power under Section 97 of the Code, far less the order of issuance of show cause notice as have been made in the instant case. ( 7 ) IN my view, without recording his reason to believe as aforesaid the learned Magistrate has no jurisdiction to pass any order in exercise of power under Section 97 of the Code, far less the order of issuance of show cause notice as have been made in the instant case. ( 8 ) I have carefully gone through the impugned order and in the four corners of the same, I have not found that the learned Magistrate before passing the impugned order has recorded his reason to believe that the confinement of the person in question amounts to an offence and as such, the order passed in purported exercise of power conferred under Section 97 of the Code of Criminal procedure is wholly illegal and without jurisdiction. In any event there is no scope available to a Court in exercise of its power under Section 97 of the code of Criminal Procedure to issue show cause notice as the order passed thereunder is not a conditional order. ( 9 ) HENCE, the instant criminal revisional application is allowed and the impugned order dated March 4, 2005, passed in connection with 33 (S) of 2005 by the learned Sub-divisional Magistrate, Krishnagar is set aside.