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2010 DIGILAW 624 (JK)

Aqeela Hassan v. Gh. Mohd.

2010-12-16

Hasnain Massodi

body2010
1. Petitioner no. 1, aged 44 years, a doctor by profession is at present posted as gynecologist at District Hospital Anantnag. Respondent no. 1 is husband of petitioner no. 1. Petitioner no. 2, aged 8 years, a student of Saint Lukes Convent School, Anantnag, is the daughter of petitioner no. 1 and respondent no. 1. It appears that marriage between the parties has run into rough weather and the petitioners after accompanying respondent no. 1 to Saudi Arabia had to return to Kashmir, because of differences with respondent no. 1 after a brief stay of 45 days. The petitioners complain that they were not allowed by respondent no. 1 to leave Saudi Arabia and it was only after the intervention of Consulate General of India, Jeddah (KSA) that the petitioners were able to leave Saudi Arabia and return to their native place. The petitioner no. 1 after her return took up her present assignment at District Hospital Anantnag. 2. Respondent no. 1 on 29 January 2010 filed an application under Section 100 Cr.P.C. in the court of JMIC Sub Registrar Jammu alleging therein that his wife and daughter-- petitioners herein -- were wrongfully confined by father and brother of petitioner no. 1 at Kadipora, Anantnag. The learned Magistrate taking cognizance in the matter on 29 January 2010 itself issued a search warrant under Section 100 Cr.P.C. addressed to SHO Police Station Anantnag directing the police officer "to conduct search of both the petitioners at Kadipora Anantnag, Kashmir, and to produce them before the court on 16th Feb. 2010." Learned Magistrate while issuing warrant under Section 100 Cr.P.C. also issued summons to the brother and the father of petitioner no. 1-- respondents 3 and 4 in the application under Section 100 Cr. P.C. 3. The petitioners aggrieved of the order of JMIC Sub Registrar Jammu dated 29.1.2010 have approached this court with a petition under Section 561-A Cr.P.C. for quashment of the said order as also proceedings emanating from the application under Section 100 Cr.P.C. 4. Inherent powers of the court are invoked on the grounds that the order impugned in the petition amounts to abuse of process of law as the proceedings were initiated with mala fide intentions and to harass the petitioners. Inherent powers of the court are invoked on the grounds that the order impugned in the petition amounts to abuse of process of law as the proceedings were initiated with mala fide intentions and to harass the petitioners. The order impugned is said to be bad in law and to have been made oblivious to ingredients of Section 100 Cr.P.C. It is averred that earlier respondent no. 1 to wreak vengeance and harass petitioner no. 1, in 2009 A.D. removed petitioner no. 2 from the custody of petitioner no. 1 and confined her at some place in district Rajouri and that petitioner no. 2 was restored to liberty only after a warrant under section 100 Cr.P.C. was issued by Chief Judicial Magistrate Anantnag, petitioner no. 2 was produced before the said court and the custody of petitioner no. 2 was handed over by CJM Anantnag vide order dated 2.5.2009, to petitioner no. 1. Petitioner no. 2, it is insisted, is thus in lawful custody of petitioner no. 1 and that learned JMIC Sub-Registrar Jammu was not right in issuing a search warrant under Section 100 Cr.P.C. 5. Heard and considered. 6. The Magistrate having power under Section 100 Cr.P.C. to issue search warrant, is not to issue such warrant at mere asking of applicant or only on the basis of allegations set out in the application or affidavit sworn in support thereof. The power is to be exercised only where the Magistrate has "reason to believe" that any person is confined "under such circumstances" that the "confinement" amounts to offence. The language in which the provision is couched makes it abundantly clear that the Magistrate has to apply his judicial mind and on an objective appraisal of the case set up by the applicant arrive at a conclusion whether there is a "reason to believe" that a person is confined under "such circumstances" that the "confinement" amounts to an offence. The duty cast on the Magistrate to look for such reasons as must lead to the belief that a person is confined under the circumstances detailed in section 100 Cr.P.C. implies that the Magistrate has not to deal with the matter in a casual, cursory or mechanical manner. Section 100 Cr. The duty cast on the Magistrate to look for such reasons as must lead to the belief that a person is confined under the circumstances detailed in section 100 Cr.P.C. implies that the Magistrate has not to deal with the matter in a casual, cursory or mechanical manner. Section 100 Cr. P.C. is a provision of emergency and the Magistrate has to be on guard that the provision is not misused to settle scores, wreak vengeance or force a decision on a person in respect of a matter which does not have trappings of a matter contemplated under the said provision. Some unscrupulous litigants quite often try to give a cause purely civil in nature -- more often a matrimonial dispute-- the colour and complexion of a criminal act that the nature and background of the dispute would not otherwise warrant, so as to persuade a Magistrate or court to exercise emergency powers. It is for a Magistrate approached with an application under section 100 Cr.P.C. to make a brief but searching and as far as possible in-depth inquiry into the averments made in the application so as to decide whether the facts that surface on such inquiry give the Magistrate "reason to believe" that the person alleged to be in confinement is in confinement in the circumstances laid down in Section 100 Cr. P.C. The Magistrate should not treat the requirement of recording statement of the applicant or the witness produced by the applicant, as an empty and idle formality but use it as a tool to unravel and dig out true facts and check the veracity of the allegations detailed in the application. The Magistrate should while recording statement of the applicant and his/her witness put such questions to him/her as would help the Magistrate to have sufficient information regarding age, status and profession of the person alleged to be under confinement, the relationship, if any, alleged captors/respondents have with the person alleged to be under wrongful confinement and the backdrop against which the powers under section 100 Cr. P.C. are sought to be invoked. In case the Magistrate discharges duty cast under section 100 Cr. P.C. carefully and diligently, there would be lesser chances of misuse of Section 100 Cr. P. C. and such other provisions intended to be pressed into service in case of emergency. 7. P.C. are sought to be invoked. In case the Magistrate discharges duty cast under section 100 Cr. P.C. carefully and diligently, there would be lesser chances of misuse of Section 100 Cr. P. C. and such other provisions intended to be pressed into service in case of emergency. 7. In the case in hand, had the learned Magistrate taken trouble to apply judicial mind to the facts placed before the Magistrate and made an attempt to elicit necessary information from the respondent as regards background in which the application was being made, learned Magistrate would have definitely felt dissuaded from issuing a warrant under Section 100 Cr. P. C. and realized that the order he was being persuaded to make would amount to abuse of the process of law. Learned Magistrate ought to have noticed that as per respondent’s own admission made in application and summarized in the impugned order, the petitioners had on their own returned from Saudi Arabia, and gone to reside with parents of petitioner no. 1 at Kadipora and what was complained by the respondent was that the petitioners had overstayed at parental house of petitioner no. 1. The respondent was aggrieved that he was insulted by the father and the brother of petitioner no. 1 when the respondent went to his in-laws’ house at Kadipora. The facts narrated by the respondent in his application under Section 100 Cr.P.C. ought to have placed the Magistrate on guard and led him to the conclusion that petitioner no. 1 was with her father and petitioner no. 2 with her grand-father and maternal uncle and that there was no "reason to believe" that the petitioners were "confined under such circumstances" that the "confinement" amounted to an offence. The learned Magistrate did not realize that petitioner no. 1 was a grown up lady, aged 40 years, and held a responsible position in the Health Department of the State Government and the chances of her being wrongfully confined were too remote. It was not also realized that while issuing the warrant the petitioners were likely to be dragged all the way from Anantnag to Jammu and exposed to immense inconvenience and hardship. The case depicts a total non-application of judicial mind on the part of JMIC Sub Registrar, Jammu. The learned Magistrate did not even record his satisfaction regarding presence of fundamental ingredients of Section 100 Cr. The case depicts a total non-application of judicial mind on the part of JMIC Sub Registrar, Jammu. The learned Magistrate did not even record his satisfaction regarding presence of fundamental ingredients of Section 100 Cr. P. C. so as to warrant exercise of powers under Section 100 Cr.P.C. 8. For what is discussed above, the petition is allowed and order dated 29/01/2010 passed by JMIC Sub Registrar Jammu quashed. 9. A copy of the order be circulated/sent to all the Magisterial courts.