CrPCJudicial ExamLegal Notes

Remedies for unlawful confinement

 

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Section 97 provides that if a Magistrate has reason to believe that any person is confined unlawfully, he may issue a search warrant for the search of such a person, and if the person so confined if found, he is to be taken immediately to a Magistrate, who must pass such order as seems proper in the circumstances of the case.

This section contains an emergency provision, which authorises the Magistrate to issue a search warrant if he has reason to believe the truth of an allegation. It does not require any detailed inquiry, and is not concerned with the guilt of the persons complained against.

In one case, a boy has taken away by his natural father from the house of the alleged adoptive father, alleging that no adoption had in fact taken place. When the adopting father applied for recovery of the boy under this section, it was held that section 97 would not apply, as it was doubtful whether the confinement of the boy by the natural father amounted to an offence.

Similarly, where the information before the Magistrate was that a woman was living in her mother’s house, and there was no suggestion that she was being detained by her mother against her will, it was held that the Court had no jurisdiction to issue a warrant under section 97.

Likewise, if a complaint is made to a Magistrate about the deduction or unlawful detention of a woman or a female child under the age of 18 for any unlawful purpose, the Magistrate may make an order that such a woman should be immediately released or that such a female child should be immediately restored to her husband, parent or other guardian. All such force as may be necessary may be used to compel compliance with such an order. (Section 98)

The main purpose of section 98 is to protect girls and women from detention for immoral purposes, although the section is wide enough to cover detention which is clearly unlawful though not necessarily immoral.

It has been held that the detention of a child in a missionary school against the will of her parents, with a view that she should be brought up in a particular region, which such parents disapproved of, would certainly amount to unlawful detention, as it would not only bring about a total change in the child’s mode of life, but would also deprive the parents of any control in the education or upbringing of child.

However, the detention of a girl by her father in his house, against the will of her husband would not amount to unlawful detention, unless it is shown that the detention was contrary to the girl’s wishes also.

Similarly, it has been held that if a woman is residing with her relatives who are aiding her in producing a divorce, it does not amount to unlawful detention.

It is also to be noted that section 98 applies to female children only, and not to all children. This clearly shows that the purpose of the section has some special reference to the sec of the person, as for instance, adultery, concubinage, prostitution, deflowering etc.

Distinction between provision section 97 & 98

The following are the main points of distinction between section 98 and 99.

Section 97 Section 98
This section refers to any person confined wrongfully.

Child under 18 years for unlawful

This section refers to unlawful detention of woman or female purposes.
Warrant of arrest of female who has been wrongfully confined to someone may be issued under this section. Restoration of female to her liberty or lawful guardian is the only order which can be passed underthhis.

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