Sections 97 and 98 CrPC: Search for Persons Wrongfully Confined and Restoration of Abducted Females

Sections 97 and 98 of the Code of Criminal Procedure, 1973 provided special and immediate remedies where a person was believed to be wrongfully confined, or where a woman or a female child was abducted or unlawfully detained for an unlawful purpose. This article explains these provisions as they stood before implementation of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Legal position: The CrPC, 1973 was replaced by the Bharatiya Nagarik Suraksha Sanhita, 2023 with effect from 1 July 2024, subject to the applicable saving and transitional provisions. The corresponding provisions are Section 100 BNSS for search for persons wrongfully confined and Section 101 BNSS for restoration of abducted females.

Section 97 CrPC - Search for Persons Wrongfully Confined

Meaning and purpose: Section 97 empowered specified Magistrates to issue a search warrant when there was reason to believe that a person was confined in circumstances amounting to an offence. Its purpose was to provide a prompt judicial mechanism to locate the confined person and bring that person before a Magistrate.

Section 97 CrPC - essential rule

If a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class had reason to believe that a person was confined in circumstances amounting to an offence, the Magistrate could issue a search warrant. The person executing the warrant could search for the confined person. If found, that person was required to be immediately taken before a Magistrate, who would pass an order appropriate to the circumstances.

Conditions for exercise of power under Section 97

The jurisdiction under Section 97 depended on a Magistrate having reason to believe that the confinement was of such a nature that it amounted to an offence. The provision was therefore directed at wrongful or unlawful confinement and was not merely a general procedure for resolving every private dispute about custody or residence.

Who could issue the search warrant?

The power was conferred on a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class. Once the person was found under the warrant, the statute required that person to be produced immediately before a Magistrate for an appropriate judicial order.

Section 98 CrPC - Power to Compel Restoration of Abducted Females

Meaning and purpose: Section 98 dealt with a complaint made on oath alleging the abduction or unlawful detention of a woman, or a female child under eighteen years of age, for an unlawful purpose. It authorised the specified Magistrate to order immediate restoration and to compel compliance where necessary.

Section 98 CrPC - essential rule

On a complaint made on oath concerning the abduction or unlawful detention of a woman, or a female child under eighteen years, for an unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class could order immediate restoration. In the case of a woman, restoration was to her liberty. In the case of a female child, the provision referred to restoration to the person lawfully entitled to her charge. The Magistrate could compel compliance with the order by using such force as was necessary.

Complaint on oath and unlawful purpose

The statutory power under Section 98 was triggered by a complaint on oath. The allegation had to concern abduction or unlawful detention for an unlawful purpose. The provision contemplated immediate judicial intervention where its statutory conditions were satisfied.

Sections 97 and 98 CrPC at a Glance

ProvisionSubjectCore power
Section 97 CrPCPerson wrongfully confinedIssue of search warrant and production of the person found before a Magistrate.
Section 98 CrPCAbduction or unlawful detention of a woman or female child for an unlawful purposeImmediate restoration and power to compel compliance.

Corresponding Provisions under BNSS, 2023

For current law, Section 97 CrPC corresponds to Section 100 of the Bharatiya Nagarik Suraksha Sanhita, 2023, titled "Search for persons wrongfully confined." Section 98 CrPC corresponds to Section 101 BNSS, titled "Power to compel restoration of abducted females."

A notable textual change in Section 101 BNSS is that the former CrPC wording referring to a "female child under the age of eighteen years" now refers to a "female child", and the BNSS provision states restoration of such child to her parent, guardian or other person having lawful charge. For matters governed by the post-1 July 2024 procedural law, the BNSS provision should therefore be consulted directly.

Practical Legal Effect

These provisions are protective and remedial in character. Section 97 focuses on locating and producing a person believed to be confined in circumstances constituting an offence. Section 98 focuses on immediate restoration in the specified cases of abduction or unlawful detention. The Magistrate's statutory satisfaction and the facts alleged in the particular case remain central to the exercise of these powers.

Note: This page explains the CrPC provisions applicable before implementation of BNSS and identifies their corresponding current provisions. The procedural law applicable to a particular proceeding may depend on its date and the statutory saving provisions.