Section 97 of Code of Criminal Procedure 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 is found, he is to be taken immediately to a Magistrate, who must pass such order as seems proper in the circumstances of the case.
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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.
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In one case, a boy was 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 S. 97 would not apply, as it was doubtful whether the confinement of the boy by the natural father amounted to an offence. (Chagan—24 C.W.N. 104)
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 S. 97. (Thakamani, — A.I.R. 1938 Cal. 704)
Likewise, if a complaint is made to a Magistrate about the abduction 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. (S. 98)
The main purpose of S. 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.
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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 religion, 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 the 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. (Nathu,—15 Cr. L.J. 712)
Similarly, it has been held that if a woman is residing with her relatives who are aiding her in procuring a divorce, it does not amount to unlawful detention. (Syed Umar,—2 Weir 724)
It is also to be noted that S. 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 sex of the person, as for instance, adultery, concubinage, prostitution, deflowering, etc.