S. 97 CrPC | Second Application For Search Of Persons Wrongfully Confined Can Be Entertained If New Facts & Circumstances Arise: Orissa High Court

While allowing the revision petition filed against the dismissal of a second application under the above provision, a Single Judge Bench of Justice Sashikanta Mishra said,

“…in particular, looking at the statutory intent behind enactment of Section 97 of Cr.P.C. it can be safely held that in the peculiar facts and circumstances of the present case, the filing of the subsequent application cannot be treated as barred by law.”

Factual Background

The petitioner filed an application under Section 97 of Cr.P.C. before the Sub-Divisional Magistrate (SDM), Jajpur for issuance of search warrant for finding out her minor daughter. The SDM issued a search warrant directing the police to search the house of the opposite parties, who are husband and his family members of the petitioner, and to produce the child before the Court.

The SDM, while passing the order, held that the child is in the custody of its father and therefore, the question of illegal confinement does not arise as he is the legal guardian. However, the petitioner filed an application again under Section 97 before the SDM, which was rejected by holding that the self-same dispute had already been decided in the earlier case and therefore, the proceeding initiated is barred by res judicata.

The above orders are challenged before the High Court in this revision petition.

Contentions of Parties

It was submitted for the petitioner that there is no concept of res judicata in criminal jurisprudence. Again, the subsequent application was filed as it was for a different cause of action i.e., danger to the life of the child. The decision of the High Court in Keshaba Chandra Sahoo v. State of Odisha & Ors., 2023(I) OLR 288 and the judgment of the Bombay High Court in Purushottam Wamanrao Thakur v. Warsha, 1992 CriLJ 1688 were relied upon in support of these contentions.

To the contrary, it was argued for the State that the second application filed by the petitioner is barred under Section 362 of CrPC. It was further submitted that it is open to the petitioner to approach the competent court seeking custody of the child if she so desires, but such order cannot be passed in an application under Section 97 of CrPC.

Court’s Observations

The Court said though Section 362 of CrPC puts a bar on a criminal court to review or alter its judgment/order after the same has been passed, but in the instant case, if the averments of the subsequent application are read objectively, it would reveal a definite and specific cause of action requiring intervention.

“Thus, the alleged confinement of the child as per the first application cannot be treated as a one-off incident so that the order passed by learned SDM on 26.10.2021 would be treated as a bar for invoking the provision under Section 97 of Cr.P.C. for all times to come. Such an interpretation would militate against the very legislative intent behind enacting the relevant provision,” the Court added.

Justice Mishra noted that the child is said to be kept confined to a room and there is also some danger to its life. He said, if the allegations levelled by the petitioner are accepted on their face value, the possibility of such offence having been committed cannot entirely be ruled out.

Therefore, the Court was of the considered opinion that the second application filed under Section 97 by the petitioner was maintainable. Further, it reprimanded the SDM for forming a mechanical opinion that as the child is with her father, she is safe.

“Learned SDM appears to have lost sight of the legislative intent of Section 97 of Cr.P.C. completely…What exactly is the situation viz-a-viz the child now, is the question that should have been considered by learned SDM instead of mechanically referring to the said arrangement. Thus, at least a preliminary enquiry ought to have been made by learned SDM in the matter for recording his subjective satisfaction as regards the veracity of the allegations relating to confinement of the child”, it added.

Resultantly, the revision was allowed, setting aside the impugned order and the matter was remitted back to the SDM for reconsideration under Section 97, after issuance of notice to the husband and his family members.

Case Title: Amrita Ray v. State of Odisha & Ors.

Case No.: CRLREV No. 196 of 2022

Date of Judgment: February 7, 2023

Counsel for the Petitioner: Mr. A.N. Pattanayak, Advocate

Counsel for the Respondents: Mr. Sangram Das, Standing Counsel

Citation: 2023 LiveLaw (Ori) 31