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2009 DIGILAW 2256 (ALL)

SONALI SINGH v. STATE OF U. P.

2009-05-15

NAHEED ARA MOONIS, RAVINDRA SINGH

body2009
JUDGMENT RAVINDRA SINGH and NABEED ARA MOONIS, JJ. 1. This writ petition has been filed by the petitioners Smt. Sonali Singh, Gaurav Singh, Retd. Major Narsingh Bahadur Singh, Rajiv Singh and Ashutosh Singh with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 31.3.2009 in case crime No. 966 of 2009 under sections 363, 120-P, IPC, P.S. Kotwali, District Ghazipur and to issue a writ, order or direction in the nature of mandamus restraing the opposite parties from arresting the petitioners in the above mentioned case. 2. The facts in brief of this case are that the FIR has been lodged by Krishna Pratap Singh @ Babuwa Singh at P.S. Kotwali, District Ghazipur on 31.3.2009 at 12.15 p.m. in respect of the incident which had occurred on 18.3.2009 at about 7.00 p.m. alleging therein that son of the first informant namely late Anand Prakash Singh had died, his son Rishabh Anand aged about 10 years and his daughter Km. Shaurya Anand aged about 13 years were given to the first informant in his guardianship by the Court but the widow of late Anand Prakash Singh who is mother of Km. Shaurya Anand and Rishabh Anand has performed another marriage has kidnapped the above mentioned children forcibly from the custody of the first informant. 3. The first informant moved an application in the Court of District Judge, Ghazipur for becoming guardian of aforesaid minor children and to restrain Smt. Sonali Singh for not taking the minor children from the custody of the first informant on which the interim order dated 9.8.2007 was passed and notice was issued to Smt. Sonali Singh who filed the reply also in the Court, after considering the same the Court has passed the order dated 11.11.2008 declaring the first informant to be guardian of the above mentioned children. Both the children are in the custody of the first informant who were student, of St. Johns School, Tulsipur, Ghazipur. The Head Master of the school was also informed about the Courts order dated 9.8.2007. Both the children are in the custody of the first informant who were student, of St. Johns School, Tulsipur, Ghazipur. The Head Master of the school was also informed about the Courts order dated 9.8.2007. On 18.3.2009 the first informant left the children in school by his personal car there after he went Nandganj Bazar, both the children were appearing in the examination the closer of the school was at 1.00 p.m., Ram Chandra, employee of the first informant sent to the school by his wife for taking the children. The first informant was also returning from the Nandganj at about 11.30 a.m. he saw a Tata Safari vehicle coming from the front side in which the petitioners and the kidnapped children were sitting, the driver of the vehicle was unknown, it was not time of the closer of the school, therefore, the first informant thought it a suspicion, thereafter he went to the school where his employee Ram Chandra came in a perturbed condition and said that the children have been forcibly taken away by the petitioners, he tried to prevent them but he was pushed down, thereafter he came to know from the Principal of the school that petitioner Smt. Sonali Singh had expressed his desire to meet her children, then both the children were called and brought to the office and by playing a fraud both the children were taken away by the petitioner Smt. Sonali Singh. Being aggrieved from the impugned FIR the petitioners have filed this writ petitioner before this Court. 4. Heard Sri Rakesh Pandey, learned Counsel for the petitioners, learned AG.A for and State and Sri AK. Malviya, learned Counsel for the respondent No.4. 5. It is contended by learned Counsel for the petitioners that petitioner No.1 Smt. Sonali Singh is mother of the alleged kidnapped children, in such circumstances, no offence under sections 363, 120-B, IPC is made out. Both the children are with the petitioner No.1 who is natural guardian. This FIR has been lodged due to ulterior motive so that the petitioners may be unnecessarily harassed, therefore, the FIR and its investigation may be quashed. There is dispute between mother and grand-father of the alleged kidnapped children. Both the children are with the petitioner No.1 who is natural guardian. This FIR has been lodged due to ulterior motive so that the petitioners may be unnecessarily harassed, therefore, the FIR and its investigation may be quashed. There is dispute between mother and grand-father of the alleged kidnapped children. The respondent No.4 being the grand-father of the children want to take the custody of the children, therefore, an application under section 13 Hindu Minor Guardianship Act and section 25 of the Guardians and Wards Act claiming the custody of the minor children has been• filed, the same is pending in the Court of learned District Judge, Ghazipur. But O.P No.4 has obtained exparte order on 11.11.2008 thereby he got himself appointed as guardian of the minor children and their movable property. The petitioner has filed a restoration application. The respondent No.4 has a property dispute with petitioner No. 4 who is real nephew of the O.P. No.4. The petitioner No.5 is son of sister of O.P. No.4. The petitioner No.5 has lodged an FIR against O.P. No.4 in case crime No. 1259 of 1998 under sections 420, 467, 468, 471, 120B, IPC, P.S. Kotwali, District Ghazipur. The O.P. No.4 is emotionally blackmailing the petitioners. The FIR is wholly mala fide which has been lodged due to ulterior motive on the basis of some extraneous considerations, therefore, the FIR may be quashed. 6. In reply of the above contention, it is submitted by learned A.G.A. and learned Counsel for the respondent No.4 that the petitioners have forcefully taken away the children from the school in a pre-planned manner whereas she was restrained by the order dated 9.8.2007 by the District Judge, Ghazipur by ordering that opposites parties will not take away the minor children from the custody of Krishna Pratap Singh, respondent No.4. The order dated 9.8.2007 was challenged by the petitioner No. 1, the mother of the children before this Court by way of filing Civil Mise. Writ Petition No. 63552 of 2007, the same was disposed of with the consent of the parties with the observati0ns that the District Judge, Ghazipur may take statement of the girl child and examine her in his chamber. He will not subject the girl child to any crossexamination or harassment by Counsels of either of the parties. Writ Petition No. 63552 of 2007, the same was disposed of with the consent of the parties with the observati0ns that the District Judge, Ghazipur may take statement of the girl child and examine her in his chamber. He will not subject the girl child to any crossexamination or harassment by Counsels of either of the parties. The District Judge, Ghazipur, if he so likes, may examine the girl child alone or in the presence of either of the parties. Learned Counsel appearing for the petitioner states that she would not insist upon interim custody. The District Judge will first decide the issue of jurisdiction as preliminary issue and if he finds that he has the jurisdiction to decide the matter, endeavour to decide the guardianship issue finally as expeditiously as possible preferably within three months, in the meantime the interim custody will remain with the grant parents subject to the final orders which may be passed by the District Judge. Thereafter the Special Judge has recorded the statement of the girl Km. Shaurya Anand in his chamber, the specific version has been taken by her that her mother has remarried with Rajneesh Upadhyay, thereafter she has settled in Delhi thereafter the order dated 11.11.2008 was passed in favour of the respondent No.4 in Mise. Case No. 24 of 2007 by learned Special Judge (E.G. Act), Ghazipur. The application filed by respondent No.4 was allowed. Respondent No. was appointed the guardian of minor children and their property. The issue was finally decided, thereafter both the children were forcefully taken away by the petitioner, whereas they were having no concerned with them and the petitioner No.1 is remarried after the death of father of the minor children. The kidnapped children have not been recovered, their life is in danger, this petition is devoid of merit the same may be dismissed. 7. Considering the submissions made by learned Counsel for the petitioners, learned A.G.A. for the State of U.P., the learned Counsel for respondent No.4 and from the perusal of the record it appears that the respondent No.4 is legal guardian of the children who have been allegedly kidnapped by the petitioners. 7. Considering the submissions made by learned Counsel for the petitioners, learned A.G.A. for the State of U.P., the learned Counsel for respondent No.4 and from the perusal of the record it appears that the respondent No.4 is legal guardian of the children who have been allegedly kidnapped by the petitioners. The issue of the guardianship has been decided by the competent Court vide order dated 11.11.2008, though the petitioner No.1 is mother of the alleged kidnapped children who after the death of father of the alleged kidnapped children had performed the marriage with some other person. In such circumstances, she may not be said to be natural guardian of the alleged kidnapped children. The kidnapped children have been forcibly kidnapped from the school by the petitioners. The allegation made in the FIR are constituting the offence punishable under sections 363, 120-8. IPC which is cognizable offence. The petitioners have disobeyed the order dated 11.11.2008 by Addl. Sessions Judge/Special Judge (E.G. Act), Ghazipur. The FIR is not barred by any provisions of law and there is no ground for quashing the FIR, therefore, the prayer for quashing the FIR is and staying its investigation is refused. 8. However, consider in:?; the facts, it is directed that in case petitioners appear before the Court concerned within 30 days from today and apply for bail, the same shall be heard and disposed of in view of Smt. Amrawati and another v. State of U.P. has been specifically approved in this decision. In this regard the Full Bench has held in Amrawati: (1) Even if a cognizable offence is disclosed in the FIR or complaint the arrest of the accused is not a must rather the police officer should be guided by the decision of the Supreme Court in Joginder Kumar v. State of U.P. before deciding whether to make an arrest or not. (2) The High Court should ordinarily not direct any Subordinate Court to decide the bail application the same day, as that would be interfering with the judicial discretion of the Court hearing the bail application. However, as stated above, when the bail application is under section 437, Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. However, as stated above, when the bail application is under section 437, Cr.P.C. ordinarily the Magistrate should himself decide the bail application the same day, and if he decides in a rare and exceptional case not to decide it on the same day, he must record his reasons in writing. As regards the application under section 439, Cr.P.C. it is in the discretion of the learned Sessions Judge, considering the facts and circumstances whether to decide the bail application the same day or not, and it is also in his discretion to grant interim bail the same day subject to the final decision on the bail application later. 9. The same has been approved by the Hon'ble Apex Court in Lal Kamlendra Pratap Singh v. State of U.P., on 23.3.2009 in Criminal Appeal No. 538 of 2009 reported in 2009 (1) JIC 677 (SC) = 2009 (2) Supreme 600 . With this direction, this petition is finally disposed of. Petition Disposed Of