Cases referred:

The State v. Billi and another, A.I.R.1953 Nag. 128.

Dhapu v. Purilal, A.I.R. 1959 M.P. 356.

Tulsidas v. Chetandas, A.I.R. 1933 Nag. 374.

Newend Ram Vishindas v. Emperor, A.I.R. 1948 Sind. 97.

Ashok Thadani v. Ramesh K. Advani, 19152 Cr. L.J. 1446.

Lilabai v. Chandanlal, A.I.R. 1958 M.P. 24.

Mt. Khaligan v. Emperor, A.I.R. 1945 Oudh. 170.

Smt. Basanti Bai v. Mohanlal, A.I.R. 1958 Raj. 267.

Sukram v. Mishribai, A.I.R. 1979 M.P. 144.

Parambath Kanaran and others v. C.R. Vasudevan, A.I.R. 1941 Mad. 625.

JUDGMENT

P.C. Pathak, J. - The brief facts of this case are that non-applicant Sagarlal Behera filed a complaint under section 98, Cr. P.C. that according 'banani' custom prevalent in his Sahu community, he married Ku. Krishna @ Bijli Sahu, aged about 22 years, the daughter of Laxmidhar Sahu on 20-5-1985 at Raipur and thereafter both lived together at Raipur. She was allowed to return to her village Laida In district Sambalpur (Orissa) to prosecute her studies and even thereafter she had been visiting him at Raipur. Krishna allegedly became pregnant through him but aborted on 16-2-1986. Dr. (Mrs.) K. Tiwari treated her at Raipur. The applicant further stated that the was with him in September and October, 1986. During this period, the applicant, in token of fidelity and marital bliss, purchased properties and opened bank accounts in her name. Thereafter Krishna went to her father at village Laida. Her father Laxmidhar Sahu and uncle Madan Mohan Sahu did not permit her to return back to him. The applicant was also not allowed to meet her. He received information that Krishna's marriage has been settled with one Shesh Deo Kaiwart and the marriage was to be performed on 18-1-1987. Therefore the non-applicant contends that, Krishna's detention by her father and uncle is unlawful for the unlawful purpose of her second marriage. He, therefore, prayed for restoration of Krishna to him. In support of the complaint, the non-applicant filed his own affidavit' and photostat copies of four other affidavits of Makhanu Behera his elder brother, Smt. Kiyaful his first wife, Ayodhya Prasad Pandey and Dusthi Dandsena.

2. On 14-1-1987, the application, though addressed to S.D.M. was presented before Additional District Magistrate, Raipur, who endorsed on its margin "Issue search warrant to N/A." The order sheet was however written on 15-1-1987, mentioning the filing of the application with affidavits, which was ordered to be registered as application under section 98, Cr. P.C. There is also a direction to issue search warrant against the non-applicants viz. Laxmidhar Sahu and Madan Mohan Sahu.

3. The case was next taken up on 23-1-1987, N.A. Laxmidhar and Krishna filed their separate replies denying the alleged marriage and his locus standi to move the application. The search warrant returned unexecuted.

4. On 8-4-1987, Krishna sent an application by post to the High Court invoking the suo motu revisional powers under section 401, Cr. P.C. against the proceedings before the Additional District Magistrate. By order dated 17-4-1987 of the Chief Justice, the application has registered as criminal revision. On 1-5-1987, I admitted the revision and directed issue of notice to Sagarlal Behera, stayed further proceedings before the trial Court and sent for the original record.

5. The non-applicant appeared with his counsel and filed objections by way of reply on 29-6-1987. On 4-7-1987, I appointed Shri Fakhruddin to appear as amicus curiae on behalf of Krishna. Since Shri Fakhruddin was not available, Shri N. K. Shukla, Advocate appeared as amicus curiae for the applicant. Arguments were heard on 24-8-1987.

6. Learned counsel for the non-applicant raised an objection that the revision has not been filed along with certified copy of the impugned order and therefore it is liable to be rejected. He further submitted that the signature on the revision petition is not the signature of Krishna and instead her signature has been forged by someone. According to him, Krishna is' illegally detained by her father, with intent to perform her second marriage with another person. Therefore he is entitled to restoration of her custody.

7. The aforesaid objections were orally turned down and the non-applicant was told that the letter has already been treated as a revision. Even other-wise this Court in exercise of suo motu powers intends to examine the legality, propriety and the correctness of the proceedings before the Additional District Magistrate and therefore, if he wanted further opportunities the hearing could be adjourned. The learned counsel for the non-applicant stated that he did not require any further time and the revision could be finally heard.

8. Section 98 of the present Code corresponds section 552 of repealed Code with a minor change that the power is now conferred on S.D.M. or a Magistrate, First Class also. The section is intended to give immediate relief to a person, who is in unlawful detention for an unlawful purpose. It aims at summary disposal of the application. The section runs as under:

"98. Power to compel restoration of abducted females. Upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years for any unlawful purpose, a District Magistrate, Sub-Divisional Magistrate or Magistrate of the First Class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary."

A bare reading of section, makes it clear that before the power under the section can be exercised, the Magistrate must be satisfied that there is unlawful detention for unlawful purpose. It either is not established the Magistrate has no jurisdiction to pass order under this section. See The State v. Billi and another1. The Magistrate has no jurisdiction to decide civil rights of the parties. See-Dhapu v. Purilal2.

9. The section does not prescribe any procedure. However, it is clear that it aims at summary disposal. The necessary action to be taken under this section is (i) to examine the complainant on oath; and (ii) to issue a notice to the non-applicant to show cause against the complaint and to produce the woman or the female child before court to be dealt with according to law.

The expression "complaint on oath" does not mean a complaint made in a statement on oath recorded in court. If an affidavit is filed in support of the complaint, the requirements of law are met Tulsidas v. Chetandas3. There is nothing in the section empowering Magistrate to issue an order directing the police to search and produce the woman before him, See-Newend Ram Vishindas v. Emperor4.

10. Faced with the aforesaid difficulty learned counsel for Sagarlal submitted that his application though filed under section 98, is also under section 97, Cr. P.C. Viewed from this angle, I find that the requisite condition to be satisfied before initiating action under section 97 is that the Magistrate must have reason to believe that the person was confined under such circumstances which would amount to an offence. The words 'reason to believe' mean that the belief must have been arrived at judicially after considering all the relevant materials with a sense of responsibility. Ashok Thadani v. Ramesh K. Advani5. Unless the Magistrate has reason to believe that a person is wrongfully confined under such circumstances that the confinement itself amounts to an offence, the issue of warrant under section 97 is without jurisdiction. Lilabai v. Chandanlal6. True that he is not bound to hold a regular enquiry and may act merely on an application supported by an affidavit as he is expected to base the belief on proof of a prima facie case yet it would be wise to hold some enquiry or to give notice to the opposite party and not merely rely on the allegation of an interested person of whom he knows nothing. See-Mt. Khaligan v. Emperor7.

11. As seen above, the learned A.D.M. issued the search warrant in a routine manner without application of judicial mind to the allegations made in the application and the materials placed before him. The issues of warrant to search was automatic is clear from the fact that the application, even though addressed to the S.D.M. was entertained by him without a word of objection from him. When the application was presented before him on 14-1-1987 learned A.D.M. endorsed on the margin "Issue search warrant to N/A." The first order sheet was written on 15-1-1987. Even in this the learned ADM did not record his belief before directing issue of search warrant. 'Reason to believe' mentioned in the search warrant, which appears to be in the printed form, in the absence of anything in the order-sheet, does not' cure the defect. The warrant was issued to Station Officer, Civil Lines, Raipur for execution of warrant outside jurisdiction, prescribed by sections 78 and 79 of the code was not at all borne in mind. From all these it is apparent that while exercising his powers under sections 97 and 98 of the code, the learned A.D.M. was oblivious of his duties and responsibilities.

12. Non-applicant Laxmidhar and Krishna both filed replies, supported by affidavits, that Sagarlal is not Sahu but 'Keut' by caste and there is no customary marriage as 'Banani' in Keut caste. They denied that she was ever married to him in the customary form or in any other on 20-5-1985 or any other date or that she stayed with him as married wife or that she ever became pregnant through him or that she ever a forted and took treatment from Dr. Tiwari. They further submitted that Sagarlal is their younger sister's husband and therefore Krishna is his niece. They admitted that Krishna's marriage was to be performed on 18-1-1987 with Shesh Deo Seth. Thus there is total denial of wrongful detention for any unlawful purpose.

13. The next question is whether there is any unlawful detention for unlawful purpose. Sagarlal's Statement is that he married Krishna under the custom of 'banani' on 20-5-1985 at Raipur and that she became his legally married wife. He further alleges that he is the lawful quardian of Krishna and it entitled to have the lawful charge of said Krishna. He supported his application with an affidavit of Smt. Kiyaful his first wife. She states that her consent was taken for the second marriage with Krishna and she had no objection. Section 5 of the Hindu Marriage Act prescribes the conditions to be fulfilled before a marriage can be solemnized between two Hindus. Clause (i) prescribes monogamy. If at the time of performance of the marriage one of the parties had a spouse living and the earlier marriage had not already been set aside the later marriage is no marriage at all. Being in contravention of the condition laid down under section 5(i), sagarlal's alleged marriage with Krishna is void ob initio. As stated by Laxmidhar, Madan Mohan and Krishna and not rebutted by Sagarlal, Kiyful, the first wife of Sagarlal, is Laxmidhar's real sister. Thus Krishna is Sagarlal's niece. Therefore the marriage between Sagarlal and Krishna could not take place being prohibited under section 5. In the circumstances, it has to be held that there exists no relationship of husband and wife between Sagarlal and Krishna. Therefore Sagarlal is not the guardian muchless lawful. Krishna's guardian are her parents and none else, she being still unmarried. There is no unlawful detention. Consequently, if Krishna's marriage was going to be performed with Shesh Deo, it cannot be termed as wrongful purpose.

14. The complaint, filed by Sagarlal, is thus devoid of substance and no cognizance of such complaint should have been taken by learned A.D.M. The allegations also do not make out wrongful confinement and. therefore issue of search warrant was wholly without jurisdiction. See-Smt. Basanti Bai v. Mohan Lal8.

15. The complainant is said to be an Executive Engineer in Tubewell Irrigation Branch of the P.W.D. He is 47 years old and is living with first wife. His claim of second marriage with his own niece Krishna aged about 22 years, in customary form of 'banani' is disputed. Hindu Marriage Act, 1955 also declares such a marriage void ab initio. All these should have been clear to the learned A.D.M., even on a cursory perusal of the petition, which he failed to do. This Court declined to grant restitution of conjugal rights on the ground that the marriage of the parties was in violation of the Child Marriage Act. 1929 See-Sukram v. Sukram v. Mishribai9. By issuing search warrant for production of Ku. Krishna, he not only disturbed the peace of a family but also gave recognition to an illegal act of the complainant. This was a fit case in which he should have rejected the petition in limine and directed the complainant to seek his remedy in Civil Court. I may also usefully quote Parombath Kanaron and others v. C.R. Vasudevan10 where the allegations of marriage were disputed, it was held that the Magistrate was not justified in ordering production of the girl without being satisfied that the marriage had taken place. It was further held that proceedings should be quashed as the dispute could be decided more satisfactorily by a civil court than by a summary order of the Magistrate.

16. The revision is allowed. The proceedings in Misc. Case No. 1/1981 of the Court of Shri Manish Rai Yadav, Additional District Magistrate are quashed and Sagarlal's complaint under section 98, Cr. P.C. is hereby dismissed. Before parting with the case I must record appreciation and thanks to Shri N.K. Shukla who assisted the court as amicus curiae by arguing the case on behalf of Ku. Krishna.

Petition allowed.