The provision which has not been forgotten: dead-letter law.

By Adv. SUDHEESH S KUMAR

 

Recently there was a discussion that happened before the bench of justices Maheshwari and Aniruddha bose, relating to section 97 of the criminal procedure code. The case has been filed under Article 32 by the petitioner (husband) contenting his wife has been wrongfully detained by her family because they are against their marriage. the bench asked the counsel why they are not approached the high court and the counsel replied  was due to covid situation high court is giving hearing dates after 3-4 month and the trial court is also not mostly functioning. the court asked why cannot take recourse to section 97 Cr. P.C. the court remarked that section 97 has become a dead letter in the code because of the short-cuts.

 Our usual point of view is that if a person has been wrongfully confined or detained or missing the only way of remedy is to file a habeas corpus before apex court or high court. but there are other remedies that are more effective and speedy than moving with a case and wasting the time of courts.

In jay engineering works v. state of West Bengal -  the court observed that warrant under s. 97 is in the nature of habeas corpus writ for rescuing a wrongfully confined person by the intervention of police by the direction of magisterial order.

section 97 states that, when a person is confined under such circumstances, that the confinement amounts to an offense, the district magistrate or sub-divisional magistrate or JFCM can issue a search warrant and he shall be produced before the said authorities.

before a warrant is issued under the section, the magistrate needs to satisfy that the person has been wrongfully detained.  if there is no sufficient reason to believe that the person has wrongfully detained then, section 97 has no applicability.

but in Ramesh v. Laxmi bai - the sc ruled that s.97 is not prima facie attracted to the facts and circumstances of the case when the child was living with his own father.

in conclusion, section 97 has the potential to provide immediate justice to people without moving to the high court or apex court. courts are the last resort and there are administrative ways to solve the problems of the common man.



I am a Legal professional - practicing as a counsel before the High Court of Kerala and the Trial Courts Mainly in Kottayam Zone. I graduated with a bachelor’s degree in Bachelor of Commerce from Mahatma Gandhi University (2014-17) and a bachelor’s degree in law from University of Calicut (2018-21). From November 2021 onwards till July 2022 , I was a Junior trainee at the Firm Tharakan and George Associates. Now I am an Associate Litigator at Tharakan and George Associates. Civil Commercial litigation, Consumer Litigation , Drafting of Legal Documents , Preparation of Title deeds , Registration of Firms and Society are my primary areas of practice. Opinions expressed by me here are in my personal capacity, and may not be conclusive. My LinkedIn profile is available at https://www.linkedin.com/in/adv-sudheesh-s-kumar-632977234/

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