Sunday, December 16, 2018 | ePaper

Magistrate 1st Class can issue search warrant for person believed confined

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High Court Division :
(Criminal Miscellaneous Jurisdiction)

Sheikh Abdul Awal J         
  Bhishmadev
Chakrabortty J
                                                
Firozul Islam ... Petitioner     
Vs
State and another…….
......... Opposite-Parties

Judgment
August 8th, 2018

Code of Criminal Procedure (V of 1898)
Sections 439(4) and 561A
Miscellaneous case under Section 561A of the Code is hit by Sub-Section (4) of Section 439 of the Code                                                                       …….(12)

Code of Criminal Procedure (V of 1898) Section 100
From a reading of the provisions of law, it is clear that the Metropolitan Magistrate or Magistrate, 1st class or an executive Magistrate is empowered to pass an order of search warrant, if there is any reason to believe that any person is confined.
Upon a plain reading of the miscellaneous petition under Section 100 of the Code, it is clear that the elements to believe that the minor son and daughter are confined have very well been alleged therein or in other word contents of the petition do disclose a prima-facie under Section 100 of the Code for issuing a search warrant. The 2nd party-petitioner took 2nd wife and now living together with his 2nd wife. in such fact circumstances minor son and daughter's welfare demands that they should put in the custody of their mother we think it is right and proper that the minor son and daughter should stay with their mother. The learned Judge revisional Court below appears to have considered all the material aspects of the case and justly upheld the order of search warrant.                                                                         …….(10 & 11)
Code of Criminal Procedure (V of 1898)
Sections 439A and 561 A
The extra-ordinary power of the Court Division under Section 561A of the Code cannot be invoked by a person after Section unsuccessful in an application under Section 439A of the Code except for some specific purposes set out in the provision itself, that is,   to give effect to any order under the Code prevent the abuse of the process of any Court or to secure the ends of justice.                                     ………(12)
Munshi Abdul Hamid, Advocate-For the Petitioner.
Md Fazlur Rahman  Khan DAG with Khandker Bashir Ahmed DAG with Md Ali Jinnah. AAG and Sandha  Ghosh, AAG-For the Opposite-Parties.

Judgment
Sheikh Abdul Awal J : On an application under Section 561 A of the Code of Criminal Procedure, this Rule was issued calling  upon the opposite parties to show cause as to why the impugned judgment and order dated 10-8-2011 passed by the learned Additional Sessions Judge, 4th Court, Khulna in Criminal Revision No 167 of 2010  disallowing the Revision and affirming the order dated 13-10-2009 passed by the Executive Magistrate, "Kha" Anchaol, Khulna in Miscellaneous Petition (MP) No. 211 of 2009 issuing search warrant under Section 100 of the Code of Criminal Procedure, now pending in the Court of Executive Magistrate, "Kha" Anchol, Khulna should not be quashed and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. The relevant facts briefly are that one Most. Nasrin Parvein as first party filed a Miscellaneous Petition in the Court of Executive Magistrate, "Kha" Anchol, Khulna on 13-10-2009 under Section 100 of the Code of Criminal Procedure praying search warrant for recovery of her twin baby (son and daughter),  aged about 6 years stating; inter-alia, that she was married to second party on 20-10-2000 and during their wedlock twin baby were borne namely, Nahid Majba and Arjana Mehejamin aged about 6 (six) years, although, their conjugal life was not happy one, the second party-husband used to maltreat and torture her and at one stage drove her out from the house and consequently, first party filed 2 cases, which are  now pending for trial. In this back ground, the second party on 12-5-2009 took their minor son and daughter from the custody of their mother-first party with a promise to return them (minor son and daughter) to their mother within 7 (seven) days but the second party did not return the child to their mother and in his way the second party most illegally confined the child (twin, baby) under his custody ignoring  the promise and in such circumstances the child (twin baby) are not getting proper care, maintenance and education under the custody of the second party and his 2nd wife, rather the second wife of the second party is misbehaving with the child in all possible manner as a result of which her twin baby's life have become endangered and hence, the case.
3. After receipt of miscellaneous petition the executive Magistrate, upon examining the first party, Most. Nasrin Parvein and on consideration of the contents of the petition issued warrant by his order No.1. dated 13-9-2009 recovery of the said twin baby from the custody of the 2nd party, Firozul Islam (petitioner) and next date on 5-11-2009.
4. Being aggrieved and dissatisfied with the  aforesaid order dated 13-9-2009, the present petitioner filed Criminal Revision No. 167 2010 before the learned Sessions Judge Khulna. Eventually, the said Criminal Revision was transmitted to the Court of the learned Additional  Sessions Judge, 4th Court, Khulna who by the  impugned judgment order dated 10-8-2011 disallowed the Criminal Revision and affirmed the order dated 13-10-2009 passed by the learned Executive Magistrate issuing search warrant and thereafter, the 2nd  party, Firozul Islam as petitioner preferred this, application under section 56IA of the Code of Criminal Procedure against the said judgment and order dated 10-8-2011 and obtained the present Rule.
5. Mr Munshi Abdul Hamid, the learned Advocate appearing for the petitioner submits that the learned Additional Sessions Judge. 4th Court  Dhaka under misconception of law and facts most illegally affirmed the order dated 13-10-2009 passed by the' learned Magistrate issuing 'search order for recovery of twin baby (son and daughter) of the parties inasmuch as admittedly the victims are under the custody of their father who is the natural guardian of the victims as per Mohammadan law and the victims are not wrongfully confined and thus, the provision of Section 100 of the Code of Criminal Procedure is not applicable in the present case, the impugned judgment and order is liable to be quashed. This is the only ground urged by the learned Advocate for the petitioner.
6. Mr Md Fazlur Rahman Khan the learned Deputy attorney General, on the other hand submits that in the facts and circumstance of the case the learned Additional Session Judge committed no illegality in affirming the order dated 13-10-2009 passed by the learned  Magistrate issuing search warrant for recovery of twin baby and, as such the rule is liable to be discharged.
7. We have heard the learned Advocate, perused the application and other materials on record including the impugned judgment and order of the learned Additional Sessions Judge dated 10-8-2011 as well as the order of the Executive Magistrate dated 13-10-2009.
8. On scrutiny of the record, it transpires that the opposite party No.2, Most. Nargis Parvin filed Miscellaneous Petition (MP) No. 211 of 2009 under section 100 of the Code of Criminal Procedure praying search warrant for recovery of her twin baby (son and daughter), aged about 6 years from the custody of the second party and his 2nd wife on the ground that her twin baby (son and daughter) are confined by the second party and in the attending facts and circumstances such confinement amounts to an offence and the Executive Magistrate on receipt of the petition examined the 1st party and who, on the facts of the case and on consideration of the legal position by his order No. I dated 13-10-2009 issued search warrant fixing next date on 5-11-2010. Thereafter, the second party as petitioner filed Criminal Revision No.167 of 2010 against the said search warrant under Section 100 CrPC and ultimately, the said Revision was heard and disposed of by the learned Additional Sessions Judge, 4th Court, Khulna, who after hearing both the sides by the impugned  judgment and order dated 10-8-2011 rejected the criminal revision and affirmed the order of the Executive Magistrate on the finding that the first party is mother of the victims and she is the real well wisher of her minor son and daughter and who are not getting proper care and maintenance under the custody of the petitioner 2nd party and his 2nd wife and in a case of this nature the executive magistrate committed no wrong in issuing search warrant for recovery of the victims (twin baby).
9. Now, the only question for consideration is, whether the revisional court below committed any illegality in affirming the order of search warrant. Indeciding this point. We feel it necessary to quote here under the provisions of Section 100 of the Code of Criminal Procedure for having a better view of the dispute in question, which reads as follows:
"If any 1 [Metropolitan Magistrate], Magistrate of the first class or stall or an Executive Magistrate] has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may, issue a search- warrant and the person to whom such warrant  is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper".
10. From a reading of the above provisions of  law, it is clear that the Metropolitan Magistrate or Magistrate, 1st class or an Executive Magistrate is empowered to pass an order of search warrant, if there is any reason to believe that any person is confined. Upon a plain reading of the miscellaneous  petition under Section 100 of the Code of Criminal Procedure, it is clear that the elements to believe that the minor son and daughter are confined have very well been alleged therein or in other word the contents of the petition do disclose a prima-facie case under section 100 of the Code of Criminal Procedure for issuing a search warrant. Therefore, we find that submissions of Mr Munshi Abdul Hamid have no legs to stand. The reasonings given by the learned Additional Sessions Judge, 4th Court. Khulna appear to us to be proper and sound and we do not find any reason to differ from it.
11. As already noticed that the 2nd party petitioner took 2nd wife and now he is living together with his 2nd wife, in such facts and circumstances minor son and daughter's welfare demands that they should put in the custody of their mother and we think it is right and proper that the minor son and daughter should stay with their mother. The learned Judge of the revisional Court below appears to have considered all the material aspects of the case and justly upheld the order of search warrant dated 13-10-2009.     
12. There is another aspect of the case which needs to be addressed as it involves an important question of law. It is on record that the 2nd party petitioner after becoming unsuccessful in Criminal Revision No. 167 of 2010 under Sections 435/439A of the Code of Criminal Procedure, preferred the instant application under Section 561 A of the Code of Criminal Procedure which is, in fact a 2nd Revision, filed in the camouflage of an application under Section 561A of the Code of Criminal Procedure. The extra-ordinary power of the High Court Division under Section 561 A of the Code of Criminal Procedure cannot be invoked by a person after becoming unsuccessful in an application under section 439A of the Code of Criminal Procedure except for some specific purposes set out in the provision itself, that is, to give effect to any order under the code or to prevent the abuse of the process of any Court or to secure the ends of justice which are totally absent in the present case inasmuch as we do not find anything in the impugned judgment and order that requires our interference for preventing abuse of the process of the Court or securing the ends of justice and in that view of the matter this miscellaneous case under Section 561A of the Code of Criminal Procedure is hit by sub-section (4) of Section 439 of the Code of Criminal Procedure and on this score also the instant rule is liable to be discharged. Ref. 14 BLD (AD) 84 = 46  DLR (AD) 67. 45  DLR (AD) 9. 35 DLR (AD) 127 and 40 DLR (AD) 196.

13. In view of our discussions made in the foregoing paragraphs it is by now clear that the instant Rule must fail.
14. In the result, the Rule is discharged. The order of stay granted earlier stands vacated. The executive Magistrate is directed to proceed with the matter expeditiously in accordance with law.
Let a copy of this judgment be communicated to the Court concerned at once. 

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