SAHEB BEGUM Vs. AHMED BIN HUSSAIN

JUDGEMENT

(1.) This Reference made by the Additional Sessions Judge, Hyderabad, adverts to an interesting and important question as to the ambit of powers of a Magistrate who exercised jurisdiction under section 100 of the Code of Criminal Procedure. The Eighth City Magistrate, Hyderabad, Srimathi Daya Devi; issued a search warrant dated 28th August, 1961 for discovery of one Fatima Begum and the same was executed by the police, who were empowered to conduct the search, on the next day, viz.,29th August, 1961. The Eighth City Magistrate also made an order after Fatima Begum was produced before her that she be released as, according to the learned City Magistrate, " no further action was required by her in the case." Later, i.e., on 20th September, 1961, Criminal R.P. No. 472 of 1961 was filed questioning the legality of that order made by the Magistrate for discovery of Fatima Begum. The Additional Sessions Judge, Hyderabad, considered that the search warrant was issued illegally. He, therefore, ma'de this Reference under section 438, Criminal Procedure Code, as, in his opinion, the order of the Magistrate needs to be set aside.

(2.) The few short facts leading to the filing of the petition for discovery of Fatima Begum are the following : Fatima Begum, when she was about 20 years old, married Mohammed Ibrahim Ali. But sometime before the filing of the petition, the relations between her and her husband became strained. She'was therefore living in the house of her brother Ahmed Bin Hussain and eking out her livelihood as a teacher in the Government Girls' High School, Moosa Bowli. Alleging this fact, Ahmed Bin Hussain filed an affidavit dated 28th August, 1961 and mentioned that though his brother-in-law deserted his sister Fatima Begum, he however was intent upon getting qulla from his sister even by harassing her. He further alleged in that affidavit that the mother of his brother-in-law, Saheb Begum, approached his sister on 24th August, 1961 at the school and under the pretence of effecting reconciliation, took his sister to her house bearing No. 17-3-100, Imambada, outside Yakutpura, and detained Fatima Begum there. The further allegation made by Ahmed Bin Hussain in this affidavit disclosed that his attempts made on 25th August, 1961, again on 26th August, 1961 and on 27th August, 1961 to interview his sister failed, because it was put off in the first instance from day to day and later on prevented. He also stated that he made a report of it at the Police-Station at Rain Bazaar and that when he went again to see his sister, he heard of the hue and cry of his sister coming out of the house of her mother-in-law. He stated that he believed that his sister was wrongfully confined with the object of extorting a qulla from her against her will. In amplification of his own allegations, he mentioned that his sister was prevented from attending school and the leave application which his sister sent was forced out of her. He definitely averred in that affidavit that his sister was in wrongful confinement and that he also apprehended danger to her life. On the petition filed with this affidavit as the basis, the Eighth City Magistrate, Hyderabad, passed the following order :-

(3.) As already observed, it is this order that enabled discovery of Fatima Begum and also necessitated the further order dated 29th August, 1961 setting Fatima Begum at liberty. The learned counsel reiterated the arguments advanced before the Additional Sessions Judge : firstly, that no notice of this petition was ordered to the respondent by the Magistrate ; secondly, that an independent inquiry even for entertaining the plea that Fatima Begum was wrongfully confined should have been made by the Magistrate and the warrant should not have been issued basing upon the affidavit of the petitioner ; thirdly, the Magistrate should have called for a report of the police ; fourthly, that the Magistrate should have satisfied herself that an offence has been committed because of proved wrongful confinement of Fatima Begum ; and lastly, that an order under section 100 of the Criminal Procedure Code should not be meant to be used for insulting a mother-in-law who had taken her daughter-in-law to her house and this provision should not be allowed to be misused for depriving a husband of the company of his wife. The learned Additional Sessions Judge, however, thought fit to accede to all these arguments and thought it also necessary that the order issuing the search warrant should be set aside.