SECTION 97 CR.PC: AN ALTERNATIVE REMEDY PRIOR TO HABEAS CORPUS

SECTION 97 Cr.P.C. If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class 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.

That the scope of Section 97 and the writ of Habeas Corpus is almost the same. But it has been observed that people are directly moving to the high courts and Supreme Court. The negative effect of this is that the burden of cases in the high courts are tremendously increasing.

 

Section 97 CrPC has become a dead letter due to shortcuts available. As a result, before turning to the high court for extraordinary jurisdiction, an aggrieved party must exhaust all other legal options. Even a court of appeal would not consider a writ petition if the offended party had not exhausted all other options, especially if those options are codified in law. In a culture where citizens do not all have equal access to legal institutions, having a remedy under Section 97 CrPC that expedites the process of ending unlawful detention without having to go to court is critical. 

The police, District Magistrates, and SDMs must take the complainants’ petitions seriously so that they are not denied justice and do not feel compelled to resort to the court of appeal arbitrarily. It will save the courts time and lead to a better and more just society where rights are successfully enforced even outside of the courts. Finally, Section 97 of the CrPC has a lot of potential in Habeas Corpus situations and should not be neglected. Hence, the advocate must also direct their client to take recourse under Section 97 of the CrPC over issuing a writ of Habeas Corpus to protect against unlawful detention.

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