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2008 DIGILAW 510 (JK)

Syed Mohd. Sharief v. Shafeeq-ul-Rehman Hajam

2008-12-26

MUZAFFAR HUSSAIN ATTAR

body2008
1. Petition under section 561-A Cr.P.C read with section 104 Constitution of J&K has been filed for quashing the proceedings initiated under section 100 Cr.P.C filed by respondent No.1 as also for quashment of order dated 1st Dec. 2008 passed by ld. City Magistrate Srinagar. 2. The facts as revealed in the petition are that respondent no.1 was working with a NGO in Uri area and the daughter of petitioner Masarat Jabeen, was also working with the NGO. It is further averred in the petition that respondent No.1 allegedly duped the daughter of the petitioner and lured her to enter into the marriage contract on the ground that she will be provided employment. 3. Petition further reveals that the petitioner and his family learnt about the suit for restitution of conjugal rights which was filed by respondent No.1 against the petitioner and his daughter. 4. In the said suit as admitted by learned counsel for parties, was instituted before filing application u/s 100 Cr.P.C. The xerox copy of the said suit was produced before the court. Perusal of the said suit reveals that no allegation about illegal confinement of the daughter of petitioner has been made in the said suit. The said suit has been instituted on the apprehension of the respondent No.1 that the petitioner may contract second marriage of his daughter, who respondent No.1 claim to be his legally wedded wife. 5. In the said suit, the 3rd Addl. Munsiff Srinagar on 25th Sept. 2008, issued an ex-parte order restraining daughter of the petitioner from contracting second marriage. The respondent No.1 thereafter has filed application under section 100 Cr.P.C on the allegation that petitioner has kept his daughter, wife of the respondent No.1 in illegal confinement. The ld. Magistrate on 1st Dec. 2008, ordered for issuance of search warrant u/s 100 Cr.P.C of the daughter of the petitioner. The search warrant has been issued and send to SHO police station concerned with direction to produce daughter of the petitioner. It is this order along with the entire proceedings which have been called in question in this petition. Section 100 Cr.P.C is reproduced as under:- "100. Search for persons wrongfully confined. The search warrant has been issued and send to SHO police station concerned with direction to produce daughter of the petitioner. It is this order along with the entire proceedings which have been called in question in this petition. Section 100 Cr.P.C is reproduced as under:- "100. Search for persons wrongfully confined. If any 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 persons 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." The learned Magistrate in his detailed order at page (4) has recorded as under:- "It is true that a daughter in no way can be said to be in wrongful confinement of his father, but in the facts and circumstances of the application, since it has come on record that said confinee is the wife of the applicant and the non-applicant is bent upon to contract second marriage of the alleged confinee, which under that circumstances amounts to an offence." 6. The very fact that the learned Magistrate has recorded finding that the daughter cannot be said to be in wrongful confinement of his father but has proceeded to issue search warrant under section 100 Cr.P.C for search and production of the daughter of petitioner before the court on the plea that the petitioner is bent upon to contract second marriage of his daughter which act of the petitioner as per the learned Magistrate amounts to an offence. 7. Section 100 confers powers on Magistrate if he has "reason to believe" that a person has been kept in illegal confinement and such confinement constitutes offence, to issue search warrant for the production of the confined person before the court. 8. The very expression "reason to believe" imposes responsibility on the learned magistrate to record reasons for arriving at such belief. 9. The expression "reason to believe" in respect of person confined does not relate only to confinement, but the learned Magistrate has further to record reasons which suggest that the confinement amounts to an offence. 10. In the present case the ld. 9. The expression "reason to believe" in respect of person confined does not relate only to confinement, but the learned Magistrate has further to record reasons which suggest that the confinement amounts to an offence. 10. In the present case the ld. magistrate has recorded finding that the alleged confine cannot be said to be in wrongful confinement of her father, but on the presumptuous conclusions that contracting second marriage is an offence has proceeded to issue warrant under section 100 Cr.P.C. The order in these circumstances is not only illegal and bad in law but amounts to abuse of the process of court and such proceedings and orders cannot be allowed to continue. 11. Section 100 Cr.P.C has been incorporated for laudable purpose for seeking release of a person who is kept in wrongful confinement which confinement constitutes an offence. The power under said provisions are not to be exercised at the mere asking of party or on slightest pretexts as it affects valuable rights of the person. The magistrate when satisfied in the facts and circumstances of the case, and when there is reason to believe that the person has been kept in confinement, and such confinement constitutes an offence is duty bound to issue search warrant, the provisions of section 100 Cr.P.C, however, as been seen in most of cases being abused by litigants. The ld. magistrates have to be very cautious and guarded while exercising powers u/s 100 Cr.P.C. 12. For what has been stated above this petition succeeds and is accordingly allowed. The proceedings initiated by Learned Magistrate under section 100 Cr.P.C and order dated 1st of Dec. 2008 are quashed. Disposed of accordingly.