Legal Provisions of Section 97 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Search for persons wrongfully confined:
Application of Section 97 is limited to persons who are wrongfully confined. Where a person is confined under such circumstances that the confinement amounts to an offence of wrongful confinement (Section 340, I.P.C.), a search warrant may be issued by District Magistrate, Sub-divisional Magistrate or a Magistrate of the first class for the person so confined. Therefore, the warrant issued under this section is in the nature of a writ of habeas corpus for rescue of a wrongfully confined person by the police under an order of the Magistrate.
Before issuing a warrant under this section, the Magistrate has to satisfy himself that a person has been wrongfully detained. However, this section does not contemplate a detailed inquiry or recording of findings in this regard. Nor does it provide any right for the affected party to be heard before the Magistrate issues a search warrant.
The provisions contained in Section 97 may be invoked by a father to rescue his married daughter from wrongful confinement by her in-laws. Where a person was wrongfully confined by gherao, a warrant could be issued under Section 97 for his rescue by intervention of police.
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The Supreme Court in Ramesh v. Laxmi Bai, has ruled that the provisions of Section 97 are not attracted in a case of the mother’s prayer for search of her child son who was living with his own father.
This section also applies to cases where a person is wrongfully confined irrespective of the fact whether that person is or is not the victim of kidnapping or abduction.
The Supreme Court in Mohd Ikram v. State of U.P., has held that it is more appropriate to invoke the provisions of this section in cases of recovery of wife on an application by husband whereby the question of fact may be resolved after due inquiry.
The section requires that the Magistrate issuing a search warrant under this provision must have ‘reason to believe after considering all the relevant material facts that any person is confined under circumstances which amounts to an offence of wrongful confinement. Thus where a child was in the lawful custody of the mother and the father of the child removed him from such custody by using physical force, issue of a warrant by the Magistrate under Section 97 was perfectly justified.
In Kulwant Kaur v. State of Punjab, a search warrant was issued for recovery of a woman at the instance of the person who was claiming to be her husband. But his claim was found to be false and the woman did not want to go to her real husband due to his cruelty.
The Magistrate ordered her detention in the State Protective Home. Setting aside the said order the High Court of Punjab & Haryana held that the woman should be set at liberty to go wherever she wanted to live.