Section 98 of the Code of Criminal Procedure: Evolution, Scope, and Judicial Interpretation

Section 98 of the Code of Criminal Procedure: Evolution, Scope, and Judicial Interpretation

Introduction

Section 98 of the Code of Criminal Procedure, 1973 (“CrPC 1973”) empowers a Magistrate to order the immediate restoration of a female child under eighteen years who has been abducted or unlawfully detained for any unlawful purpose. Although the provision appears narrowly drafted, its application intersects with constitutional guarantees of personal liberty (Art. 21), gender justice, and the child-centric approach of contemporary Indian jurisprudence. The section also carries historical baggage: its predecessor, Section 98 of the CrPC 1898, regulated search of places suspected of housing forged documents. The re-numbering in 1973 therefore creates interpretative complexity that persists in case law and academic commentary.

Legislative Background

The 1898 Code

Section 98, CrPC 1898 empowered a District Magistrate to authorise searches of premises believed to be used for unlawful storage of specified contraband, e.g. forged documents or counterfeit currency. Its search-warrant character was recognised in Seth Brothers v. CIT (1964)[1], which treated the provision as a model for income-tax search powers.

Shift under the 1973 Code

The CrPC over-haul in 1973 reorganised the search-and-seizure regime (now Ss. 93–103) and redeployed Section 98 to protect female minors. The present text reads:

“Upon a complaint on oath of the abduction or unlawful detention of a female child under the age of eighteen years for any unlawful purpose, a Magistrate may make an order for the immediate restoration of such female child to her parent, guardian or other person having lawful charge of her and may compel compliance with such order, using such force as may be necessary.”

Elements of the Contemporary Provision

  1. Complaint on oath – procedural safeguard ensuring judicial application of mind.
  2. Female child under eighteen – gender-specific protection; male children continue to be covered by broader remedies under Ss. 97 & 100.
  3. Abduction or unlawful detention – incorporates Ss. 362–369 IPC as contextual offences.
  4. Unlawful purpose – embraces sexual exploitation, forced marriage or trafficking; purposive interpretation is mandated post-Vishaka principles.
  5. Immediate restoration & enforceability – Magistrate may requisition police force; order is executable instanter.

Interface with Constitutional Norms

The Supreme Court has repeatedly underscored that personal liberty under Art. 21 includes the right not to be wrongfully detained. Section 98 operationalises this guarantee for a vulnerable demographic—female minors—while balancing the fundamental right of parents/guardians to their children’s custody (Art. 19(1)(g) read with subject-specific personal laws).

Judicial Interpretation

1. Early Search-and-Seizure Cases under the 1898 Code

In Emperor v. Thavarmal Rupchand (1928)[2], the Bombay High Court characterised a warrant under the old Section 98 as “special” because it limited execution to the named officer, thereby distinguishing general warrants under Section 96. The reasoning foreshadowed modern proportionality analysis—specific, narrowly-tailored search powers are constitutionally safer than general warrants.

2. Custody of Female Minors

  • Meharunnissa Khan v. Kamlesh Naik (1993)[3] clarified that Section 98 is not a vehicle for generic custody disputes; it requires a concrete allegation of abduction or unlawful detention for an unlawful purpose. The Bombay High Court dismissed the mother’s application because the minor had voluntarily chosen to live with her husband and no unlawful purpose was alleged.
  • Jaya Chakravarti v. State of M.P. (2021)[4] reiterated the narrow compass of the section yet censured Magistrates for using search warrants mechanically. The Court held that issuing a warrant without first ascertaining prima facie illegality violates procedural fairness—notice to the present custodian is indispensable.

3. Vehicles and Property Seizure: Misapplication Alert

The Gujarat High Court in Jagdishbhai Dasurao Nadmwar v. State of Gujarat (2018)[5] observed that some trial courts erroneously rely on Section 98 to refuse interim custody of seized vehicles. The Court clarified that Section 98, being child-specific, has no embargo on release of property; mislabelled orders exhibit jurisdictional error.

4. Broader Procedural Synergies

Comparative reading with Section 97 (search for persons wrongfully confined) shows an important policy choice: Parliament carved out female minors for swift, restorative relief. The gender-specific approach resonates with the Convention on the Rights of the Child and domestic enactments such as the Protection of Children from Sexual Offences Act, 2012. Further, the Supreme Court’s emphasis on distinguishing “public order” from “law and order” (e.g. Pushkar Mukherjee, 1970) informs the proportionality principle that should guide Magistrates when employing coercive measures under Section 98.

Procedural Safeguards and Best Practices

  1. Judicial Application of Mind – Magistrates must record reasons reflecting satisfaction on each statutory element.
  2. Notice & Hearing – Except in imminent danger scenarios, audi alteram partem applies; ex parte warrants invite higher-court scrutiny.
  3. Use of Minimum Force – The “necessary force” clause echoes Art. 21’s minimal-intrusion requirement.
  4. Post-Restoration Counselling – Courts should liaise with child welfare committees; integration with the Juvenile Justice (Care and Protection of Children) Act, 2015 avoids re-victimisation.

Interplay with Personal Laws

Custody rights under Section 6(a) of the Hindu Minority and Guardianship Act, 1956 and under Muslim personal law largely vest guardianship of a minor girl in her father after the age of puberty. Nevertheless, Section 98’s statutory command overrides personal-law norms where the detention is unlawful. The Bombay High Court in Meharunnissa Khan upheld the minor’s autonomous choice, but only after determining that no coercion or unlawful purpose subsisted.

Critical Appraisal

Section 98 admirably furnishes an expeditious remedy in cases of child trafficking and forced marriage, yet its gender-specific drafting is arguably anachronistic and potentially violative of Art. 14. Further, the absence of express reference to male minors or transgender children necessitates purposive expansion by courts or legislative amendment. Misapplications—illustrated by vehicle-custody orders in Gujarat—underscore the need for continuous judicial education. Finally, while the “may” in Section 98 confers discretion, constitutional proportionality dictates that once statutory conditions are met, restoration should ordinarily follow.

Conclusion

The trajectory of Section 98—from a search-warrant provision in the 1898 Code to a child-protection measure in the 1973 Code—reflects India’s evolving criminal-procedure priorities. Contemporary jurisprudence harmonises the section with constitutional guarantees, child-rights conventions, and personal-law complexities. Courts must, however, remain vigilant against both under-enforcement in genuine abduction cases and over-broad invocation in ordinary custody disputes. A purposive yet restrained application will ensure that Section 98 continues to serve its intended protective function within India’s criminal-justice architecture.

Footnotes

  1. Seth Brothers v. Commissioner of Income Tax, 1966 I.T.R. 62 (All.) (referring to Section 98, CrPC 1898, in the context of search warrants).
  2. Emperor v. Thavarmal Rupchand, 1928 SCC OnLine Bom 84.
  3. Meharunnissa Khan v. Kamlesh Naik, 1993 Cri L.J. (Bom.) (application of Section 98, CrPC 1973, to custody of female minor).
  4. Jaya Chakravarti v. State of M.P., 2021 SCC OnLine MP 3576.
  5. Jagdishbhai Dasurao Nadmwar v. State of Gujarat, Special Cr.A. No. 7642/2018, Gujarat H.C. (5 Sept 2018).
  6. Dilbagh Singh v. State of Punjab, 2009 R.C.R. (Criminal) 4 666 (Punjab & Haryana H.C.) – cited for sentencing proportionality; illustrates judicial emphasis on “ends of justice”.
  7. Theresa Jose v. Sub-Inspector of Police, 2014 SCC OnLine Ker 27626 – relied upon for principles of purposive statutory interpretation.