Babli Sharma vs Tilak Raj

V.K. Jhanji, J.

This is a petition under Article 227 of the Constitution of India for quashing of the order dated 23.12.1993 (Annexure P1) vide which, SubDivisional Magistrate, Gurdaspur issued search warrants for production of petitioner No. 1 (Babli Sharma) under Section 97. Cr.P.C. According to the petition, petitioner No. 1 is major and her date of birth as per certificate issued by Government High School, Worsola Gurdaspur is 30.4.1975. As per certificate she was aged about 18 years and 8 months at the time when search warrants for her production were issued. Counsel for the petitioners has stated that petitioner No. 1 Babli Sharma has married Bikramjit Singh (petitioner No. 2) son of Rattan Singh of her own accord and is residing with her husband Bikramjit Singh.

Previous to this, petitioners had filed revision petition under Section 397 Cr.P.C. against the order of the SubDivisional Magistrate, Gurdaspur, before the Additional Sessions Judge, Gurdaspur who recorded the statement of Babli Sharma, petitioner No. 1 on 25.1.1994. Before the Additional Sessions Judge, she had stated that she was living with petitioner No. 2 of her own accord after she had married him in Gurdwara Bath Sahib by Anand Karaj Ceremony. After recording her statement, Additional Sessions Judge directed petitioner No. 1, Babli Sharma to appear in the Court of Sub Divisional Magistrate, Gurdaspur for getting her statement recorded so that she could be allowed to go according to her whims. Subsequently, vide order dated 5.3.94, Additional Sessions Judge dismissed the revision petition solely on the ground that the petitioner was not a part before the SubDivisional Magistrate and, therefore, she was not competent to file the revision petition. This order has been impugned herein this criminal writ petition.

Having heard the learned counsel for the parties at some length, I am of the view that this petition deserves to succeed.

The question before the Additional Sessions Judge, Gurdaspur, was as to whether petitioner No. 1 who at the relevant time was major, was in illegal confinement or not. She having appeared on 25.1.1994 before the Additional Sessions Judge, Gurdaspur and gave her statement that she is living with petitioner No. 2 and had married him in Gurdwara Bath Sahib, the Additional Sessions Judge ought to have cancelled the search warrants which had been issued by the SubDivisional Magistrate under Section 97 Cr.P.C. The Additional Sessions Judge, Gurdaspur, was not justified in law in dismissing the petition on the ground that she was not a party before the SubDivisional Magistrate. Search warrants had been issued to search petitioner No. 1. She had the locus standi to the revision petition for getting the warrants cancelled.

Today father of petitioner No. 1 is present in court. He has submitted that at the time when warrants were issued, petitioner No. 1 was minor. In support of this contention he has brought certificate purporting to be birth certificate showing that she was born on 2011976. Counsel for the petitioner had placed on record copy of School Leaving Certificate before the Additional Sessions Judge and photostat copy of the same has also been produced today in Court. According to that, petitioner No. 1 is major. In any case, even according to the certificate shown by the father, petitioner No. 1 is major as on today. She is present in Court with her husband and states that she is staying with her husband of her own accord and she does not wish to go with her father.

In this view of the matter, there in no alternative but to accept this petition and quash the order dated 23.12.1993 vide which S.D.M. Gurdaspur issued search warrants under Section 97 Cr.P.C. and the orders of the Additional Sessions Judge, Gurdaspur.

This petition stands disposed of accordingly.