The Supreme Court has questioned the decision of a man to directly file a habeas corpus plea in the top court to free a woman, who he claims to be his lawfully wedded wife, from her father’s “wrongful confinement”, instead of first approaching the local magistrate to issue a search warrant for her.
A Vacation Bench led by Justice Dinesh Maheshwari referred to Section 97 of the Code of Criminal Procedure, which empowers any district magistrate, sub-divisional magistrate or magistrate to issue a search warrant for a person the court “has reason to believe” to be under wrongful confinement.
Justice Maheshwari said Section 97 had become a “dead letter” because people were taking short-cuts like directly approaching the Supreme Court for relief.
The courts have consistently held that Section 97 attaches importance to the liberty of a person found to be in wrongful confinement by empowering the magistrate to issue a search warrant. If the confined person is found, the Section requires her to be “immediately taken before a magistrate, who shall make such order as in the circumstances of the case seems proper”.
The expression “reason to believe” in the legal provision implies belief arrived at by the magistrate after application of judicial mind on consideration of available material with a sense of responsibility. The court has to consider every aspect of the controversy before issuing the warrant.
The present case concerned the plea filed by a 28-year-old man who wanted to know the whereabouts of a 20-year-old woman. He said they were married. The woman’s family had received information about the marriage and took her away from him by violence. The man said she is now confined at her family’s residence.
The man said he had tried to amicably resolve the issue with the woman’s family members, only to be threatened by the latter.
