State vs Kochukochu Bhaskaran

In this revision petition, the complainant seeks to revise an order passed by the Sub-Divisional Magistrate, Kottayam, refusing to exercise his jurisdiction to issue a search-warrant for one Lizzy Kutty, alleged to be detained by the accused in wrongful confinement, on the ground, that the place of such confinement was in Pampady, within the jurisdiction of the First Class Magistrate Ponkunnam.

The case of the petitioner is that the 1st accused, the father of Lizzy Kutty and others, formed themselves into an unlawful assembly and abducted her, when she had been living with him as his wife. After recording the sworn statement, the police who was directed by the Sub-Divisional Magistrate to report on the truth of the complaint, made a report, which does not support the petitioner, but indicates that Lizzy Kutty left the petitioner of her own volition, in the company of the 1st accused. At the same time, the Sub-Inspector of Police made a submission in the report, that unless Lizzy Kutty was found out and questioned, no definite views could be expressed regarding the alleged offence of abduction. The application now in question was made after the police had so reported, expressly u/s 100, Criminal P. C.

Notice of the criminal revision petition was issued to the accused and to the Public Prosecutor. The latter alone appeared. The question whether this is a case, in which Section 100, Criminal P. C. can be applied or not, does not arise in this petition, for the learned Sub-Divisional Magistrate did not purport to exercise his jurisdiction under it. In his opinion the petition itself did not He in his court, as the place of confinement, as stated, was outside the local limits of his jurisdiction. It appears to me, that his order cannot be supported.

Section 101, Criminal P. C. makes applicable certain provision of the Criminal P. C. to a search warrant, which may be issued u/s 100. Of these, Section 82, Criminal P. C. is one, which prescribes that a warrant of arrest may be executed at any place in India. Sections 83 and 84 are other similar provisions which are made applicable to search warrants u/s 100 and these provide for the execution of warrants outside the local limits of the jurisdiction of the court issuing the same. These provisions have been overlooked by the Sub-Divisional Magistrate. The order under revision cannot in my opinion be supported. If the petition lies properly in his Court it will still be a question for him to consider, whether in the circumstances a search warrant ought to issue. As to this, no opinion is called for at this stage.

During the course of the argument, the learned Counsel also complained that the allegation in his complaint related to an offence u/s 307 , but that after the sworn statement was recorded, the Sub-Divisional Magistrate took up proceedings, dropping Section 307, I. P. C. and that this cannot be supported. The revision is expressly directed against the order passed on the application for the issue of a search warrant. The copy of the proceedings on the sworn statement taking proceedings under certain specified sections only as complained against by the petitioner, was not filed with the revision petition. I hold, that the revision petition is directed only against the order on the application for the issue of a search warrant. However, the learned Counsel stated before me, that all the records being before this Court it is open to me to examine the legality of the proceedings. I do not feel called upon to institute a roving enquiry of that kind into all the orders passed by the Subordinate Court, in exercising the re-visional jurisdiction of this Court. Nor am I satisfied, that the accused and the Public Prosecutor had been served with notice, so as to intimate them concerning this question. This part of the argument is therefore repelled.

However the Sub-Divisional Magistrate''s order, declining to entertain the petition for the issue of a search warrant u/s 100, Criminal P. C. is in my opinion, unsupportable. This report will be submitted to the High Court under, Section 439, Criminal P. C. for appropriate orders. The records called for from the Sub-Divisional Magistrate will be submitted to the High Court u/s 439, Criminal P. C. for appropriate orders. The records called for from the Sub-Divisional Magistrate will be returned to him.

ORDER :

The Sub-Divisional Magistrate''s view that he has no jurisdiction to issue a search warrant to search for a person wrongfully confined beyond the local limits of his jurisdiction is wrong. We are in full agreement with the view to that effect set out by the learned Sessions Judge in paragraph 4 of the reference order. Section 100, Criminal P. C. under which the application was made has to be read with Sections 101, 82, 83 and 84 of the Code and when a warrant is issued by a competent Court for execution beyond its local limits all that has to be done to make it effective is to follow the procedure prescribed in Section 83 or Section 84. The reference will stand answered as above.