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Himachal Pradesh High Court · body

2003 DIGILAW 176 (HP)

MOHINDER VIR SINGH v. DEEPA SINGH

2003-07-04

V.K.GUPTA

body2003
JUDGMENT This petition under Section 482 of the Code of Criminal Procedure has been filed by the petitioners Mohinder Vir Singh and Master Sidhartha against respondent No.1 and the Sub Divisional Magistrate, Dalhousie with respect to and arising out of an application filed by respondent No.1 before respondent No.2 under Section 97 of the Code of Criminal Procedure for issuing a search warrant with respect to the alleged wrongful confinement of petitioner No.2 with petitioner No.1. 2. Shorn of unnecessary details, suffice it to say that petitioner No.1 and respondent No.1 had been married to each other, but matrimonial disputes having occurred between then, petition for divorce on the ground of cruelty was filed, but later on this petition was converted into a petition for judicial separation. The District Judge, Chamba based on the compromise entered into between the parties passed a decree for judicial separation on 27.9.1992. it is the contention of respondent No.1 that during that period, the parties also got recorded their statements in which some mentioning was made about the custody of petitioner No.2 with respondent No.1 and the terms of such custody as also some arrangement whereby petitioner No.1 was permitted to meet petitioner No.2 while in the custody of respondent No.1. 3. In the aforesaid back ground, therefore, application under Section 97 of the Code of Criminal Procedure stated that while petitioner No.2 was in the custody of respondent No.1, petitioner No.1 on 30th November, 2002 took away petitioner No.2 from the custody of respondent No.1 and since then the petitioner No.2 has been residing with petitioner No.1. Para 7 of the complaint/application, which appears to be a statement by respondent No.1 with respect to covering the ingredients of Section 97 of the Code of Criminal procedure reads thus: "That the minor son of the complaint is still in the custody of the accused and has been illegally confined in his house at Jalandhar which is against the terms and conditions of the agreement. The complainant has not been permitted to even speak to the minor on phone or to meet him. In fact, the life of the complainant is under threat as the accused is a wealthy person having many links with the high-ups. The complainant has not been permitted to even speak to the minor on phone or to meet him. In fact, the life of the complainant is under threat as the accused is a wealthy person having many links with the high-ups. As per the agreement the complainant is the only legal and natural guardian of her minor son and has every right to retain his custody, in case the accused feels aggrieved by the said order he is free to move the competent forum for redressal. The act of the accused as such is totally illegal and unlawful." 4. Section 97 of the Code of Criminal Procedure while referring to the confinement of any person makes it directly dependent upon a belief being entertained by the Magistrate that the confinement of such a person is under such circumstances that it amounts to an offence. In the present case, as I have extracted para 7 of the application, it is clearly indisputable that there is no allegation by respondent No.1 that the confinement of petitioner No.2 with petitioner No.1 in any manner amounts to committing any offence. This apart, a son living with father especially in the circumstances mentioned by respondent No.1 herself in the application cannot be said to give rise to a circumstance or situation where petitioner No.1 can be said to have committed any offence. 5. Mr. Thakur, learned counsel appearing for respondent No.1 very strongly relied upon the order passed by the District Judge, Chamba on 27 September, 1992 in H.M A. Petition No. 40 of 1992 to canvass his point of view that the parties had also agreed with respect to the custody of the child with respondent No. 1 and that this was a part of the decree passed by the Court of District Judge, Chamba. 6. I have carefully perused that order and find that even though the learned District Judge, Chamba did refer to the statements of the parties having been recorded, but such reference was made in the context of passing the decree for judicial separation and for no other purpose and, therefore, it can be said that it was closely inter-linked with the passing of the decree of judicial separation and that this reference had nothing to do whatsoever with any issue or question relating to the custody of the child. Not only that, any compromise with respect to the custody of the child that the parties might have entered into could have been incorporated as an integral part of the Court decree, but the learned District Judge did not do so and he only (on the basis of the statements of the parties) in his wisdom chose to pass a decree for judicial separation. No decree or order, therefore, was passed by any Court with respect to the custody of the child. At this stage, it shall not be desirable for me to go into the validity or enforceability of any arrangement allegedly entered into between the parties or the relevance of the statements of the parties so recorded relating to the custody of the child since in this petition filed under Section 482 of the Code of Criminal Procedure, I am dealing with a limited issue of the validity of the proceedings initiated on the basis of an application under Section 97 of the Code of Criminal procedure. 7. From what I have noticed above, I am fully convinced that Section 97 of the Code of Criminal Procedure was not attracted in this case and, therefore, initiation of proceedings under this provision of law could at the best be termed as an exercise in futility because apparently perhaps no illegality as far as in the realm of Criminal Law is concerned could be attached to the custody of the child by his father, especially in the face of the admitted factual position that the father and mother were living an estranged life with discordant relationship. Even though it may not be very relevant for the purposes of this particular petition, yet it will not be out of place to record there that on 25th April, 2003, this Court had the occasion of interviewing the child. Not only this court, but at the request of this Court, the kind assistance of the learned Advocate General Mr. M.S. Chandel was also taken to separately interview the child. The childs interview with me as well as with the learned Advocate General did indicate prima facie that the child was residing with the father of his own free volition, and possessed apparently as he was of basic wisdom and common sense, he did not appear to be too enthusiastic or willing to live with the mother. The childs interview with me as well as with the learned Advocate General did indicate prima facie that the child was residing with the father of his own free volition, and possessed apparently as he was of basic wisdom and common sense, he did not appear to be too enthusiastic or willing to live with the mother. I do not want to say anything more on the subject. 8. For the aforesaid reasons, the petition succeeds with the result that the proceedings initiated on the basis of application filed under Section 97 of the Code of Criminal Procedure by respondent No.1 before respondent No.2 are quashed and set aside with all consequences. Cr. M. P. No. 152 of 2003: 9. In view of the disposal of the petition, the present application shall stand disposed of and the interim order dated 4.4.2003 shall stand vacated.