Section 97 of the Criminal Procedure Code provides that if any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person confined under such circumstances that the confinement amounts to an offence, he may issue a search-warrant.
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.
In the present case, a husband filed a petition under the writ of habeas corpus who contended that after the family members of the corpus received information of the wedding, they had mercilessly beaten her and detained her at their residence to prevent her from cohabiting with the petitioner at their matrimonial home.
The case was being heard by a vacation bench of Justice Maheshwari and Justice Aniruddha Bose who remarked that the way the petition has been filed under article 32 and not the section 97 of the CrPC, it has been adopted as a way of shortcut and the said section is becoming a dead letter.
The justices asked the advocate why the matter could not be taken to a high court saying, “You have come under 32. Why is the High Court not competent to deal with this matter?” And then suggested the petitioner to file the case via section 97.
To this the advocate asked for permission to withdraw the current petition and come again under CrPC section 97.