Section 97 CrPC: An Alternative Remedy Prior To Habeas Corpus

The husband had filed a Writ of Habeas Corpus directly before the Supreme Court contending that his wife had been wrongfully detained by her family because they did not approve of their marriage. During the proceedings, the judge reminded the petitioner about Section 97 of the CrPC, which led to the subsequent withdrawal of the petition.

What is Section 97 of the Code of Criminal Procedure?

TS. 97 CrPC states that when a person is confined under certain circumstances, defined therein, the confinement is illegal. If the District Magistrate (Executive), SDM or Judicial Magistrate of First class "has reason to believe that such person is [illegally] confined", they can issue a search warrant to find that person.

The provision calls for "producing the body of the victim" before the authorities. In the case of Jay Engineering Works v. State (AIR 1968 Cal 407), the Court observed that a warrant under S. 97 CrPC is in the nature of a writ of habeas corpus for rescue of a wrongfully confined person by intervention of police, directed by a magisterial order.

When an application under S. 97 is filed, before issuing a search warrant the Magistrate (executive or judicial) must be satisfied that the person has been wrongfully confined. If the allegedly confined person then appears before the Magistrate and states that they are not wrongfully confined, the power under S. 97 cannot be used. It was in the case of Ammara Begum v. Habil Mea, (1962) 2 Cri LJ 159, that the Gujarat High Court directed that "when the person concerned states before the Magistrate that she was not wrongfully confined, but she was there of her own accord, the Magistrate cannot thereafter give any directions regarding the person's custody" (paragraph 8). However, the section does not case any obligation on the Magistrate to hold a detailed inquiry or to record such findings which are necessary after adjudication. And according to the judgement in PravinSingh v. Biharilal Singh (1989 Cri LJ 1386 (Bom)), neither does the affected party have the right to be heard before the Magistrate issues the search-warrant.

Circumstances which call for Invocation of Section 97 CrPC

In the case of Mohd. Ikram Hussain v. State of U.P. (AIR 1964 SC 1625), the Supreme Court reprimanded the petitioner for filing a writ of Habeas Corpus for restitution of conjugal rights, and asked him to approach the authorities under Section 97 CrPC or file for a civil remedy. The Court noted that, "exigence of the writ at the instance of a husband is very rare in English Law, and in India the writ of habeas corpus is probably never used by a husband to regain his wife". Till 1964, therefore, Habeas Corpus under Article 32 or 226 had never been used in cases involving a plea for restitution of conjugal rights- especially not when the wife is illegally confined by her family. But in 2020-21, petitioners rush to Constitutional Courts with writ petitions for such orders, even when they have other effective, cheaper and less time-consuming remedies available.

A father can use S. 97 to gain back custody of her daughter from her in-laws who have illegally confined her (Biharilal Case). However, in Ramesh v. Laxmi Bai ((1998) 9 SCC 266), the Supreme Court ruled that S. 97 is not prima facie attracted to restore custody of child with the mother when the child was living with his own father. Furthermore, in case of a person wrongfully confined by a gherao, a warrant can be issued under this section for his rescue (Jay Engineering Works v. State).

Petitioners should, therefore, refrain from directly going to the Supreme Court with writ petitions and must first exhaust other remedies. Having a remedy under S. 97 which fast-tracks the process of ending wrongful confinement without the involvement of the Court is very important in a country where the citizens do not have equal access to legal-mechanisms. The police, the District Magistrates and the SDMs must take such requests filed by the complainants seriously so that they are not denied justice and do not feel the need to unnecessarily approach the Apex Court. Local authorities, having decentralised power, understand the local situation better than the Courts situated in State Capitals or Bhagwan Das Road in New Delhi. Further, by ensuring responsiveness to complaints, the authorities also ensure that Courts are used as the last resort after exhausting all the available remedies. It will save the precious time of the Courts and will lead to a better and just society where rights are enforced effectively- even outside the Courts. In conclusion, Section 97 of the Code of Criminal Procedure has enormous potential for use in habeas corpus pleas, and must not become a 'dead-letter law'.

Views are personal.