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2012 DIGILAW 1599 (RAJ)

Jaishree Tiwari v. State of Rajasthan

2012-07-21

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—The instant miscellaneous petition has been filed by the petitioner against the order dated 15.5.2012 passed by the learned Addl. District Magistrate, Nagour whereby in proceedings under Section 97 of the Cr.P.C. initiated by the respondent No.2, the learned Executive Magistrate has directed the custody of the petitioner and the respondent No.2's son to be handed over to the respondent No.2. 2. Succinctly stated the facts relevant for the disposal of the miscellaneous petition are that the respondent No.2 filed an application under Section 97 of the Cr.P.C. in the Court of S.D.M. Merta, on 7.5.2012. The allegation in the application was that the applicant's son Devansh aged 8 years was kidnapped by the petitioner and Santosh Kumar. The S.D.M. Merta issued a search warrant on 7.5.2012 to the S.H.O. Padukallan for search of the child Devansh and fixed the next date for 21.5.2012. Thereafter it appears that the S.H.O. Padukallan recovered the child from Hyderabad where he was living with the mother, the petitioner herein. For reasons unknown, the matter was placed in the Court of A.D.M. Nagour on 15.5.2012 and the child was produced before him on that day. It is very surprising to note that proceedings of the S.D.M. Merta reveals that the S.D.M. passed an order of issuance of search warrant on 7.5.2012 and the file was never placed in his Court before the next date i.e. 21.5.2012. Be that as it may, as stated above, the file was placed before A.D.M. Nagour on 15.5.2012, he passed an order on that very day that the custody of the child Devansh be given to his natural guardian i.e. the father Ramkishore Tiwari. However, after passing of the order the child started crying and did not leave his mother on which the A.D.M. kept his order in abeyance for 15 days and directed that the mother shall not leave Rajasthan for a period of 15 days. The order dated 15.5.2012 passed by the A.D.M. Nagour is under challenge in the instant miscellaneous petitioner under Section 482 Cr.P.C. filed by the mother Smt. Jai Shree. 3. Counsel for the petitioner submits that the Executive Magistrate has no powers to issue search warrant particularly when no ingredients of any offence of wrongful confinement is disclosed from the complaint. The order dated 15.5.2012 passed by the A.D.M. Nagour is under challenge in the instant miscellaneous petitioner under Section 482 Cr.P.C. filed by the mother Smt. Jai Shree. 3. Counsel for the petitioner submits that the Executive Magistrate has no powers to issue search warrant particularly when no ingredients of any offence of wrongful confinement is disclosed from the complaint. He submits that the mother cannot be said to be holding illegal custody of her own child and despite this admitted situation on record, firstly search warrant was illegally issued for producing the child before the Executive Court and thereafter the Executive Court without any justification and without having any jurisdiction passed an order that the custody of the child be handed over to the father. Placing reliance on the decision of the Apex Court in the case of Ramesh vs. Smt. Laxmi Bai reported in 1999 Cri.L.J. 5023, learned counsel submits that the Executive Magistrate has no powers to pass an order under Section 97 Cr.P.C. when the case is of custody of child and the dispute is between the natural guardians. Learned counsel thus submits that the order impugned deserves to be quashed and the petitioner be declared to be entitled to hold custody of the child as she is his natural guardian. 4. Per contra learned for the respondent No.2 has tried to justify the order passed by the Magistrate and submits that as the mother clandestinely took away the child from the father's custody, therefore, the Executive Magistrate was justified in issuing a search warrant for having the child brought before the Court and thereafter the order of custody was also justified. 5. On 6.7.2012, the petitioner had been directed to keep the child Devansh aged 10 years before this Court. He has been brought to the Court and on enquiry being made from the child he has expressed that he is living happily with his mother and he is studying in Slate School, Hyderabad. The child appears to be in good health and is visibly happy while being in the custody of his mother. He further stated that he had been sent by his father to some distance relative at Pali from where a call was made to the mother who came to Pali and took him with her as desired by the child. 6. He further stated that he had been sent by his father to some distance relative at Pali from where a call was made to the mother who came to Pali and took him with her as desired by the child. 6. Having considered the arguments advanced at the bar and after perusing the impugned order, this Court is of the firm opinion that the Executive Magistrate has no power under Section 97 Cr.P.C. to wrest the custody of a child from its natural guardian. Section 97 Cr.P.C. is restricted in its application for issuance of direction for search of a person wrongfully confined. Admittedly when the child was in the custody of his mother, there as no reason to believe hat he was under wrongful confinement and as such the issuance of search warrant was itself uncalled for. That apart, the learned Magistrate has virtually acted as if he was having jurisdiction to decide the custody of a minor under the Hindu Guardianship and Wards Act by directing the custody of the child to be given to respondent No.2. The impugned order is totally illegal without jurisdiction and an abuse of the process of Court and is, therefore, quashed. 7. Before parting with the petition, this Court would like to observe that the manner in which the proceedings have been undertaken in this case shows something very suspicious. Undisputedly the respondent No.2 is an advocate practicing at Riyabadi. The application under Section 97 Cr.P.C. was moved before the S.D.M. Merta on 7.5.2012 and the case was registered as Case No.4/2012. Thereafter the date fixed was 21.5.2012. It has been contended before this Court that the police officers brought child from Hyderabad on 15.5.2012 and on that day S.D.M. Merta was on leave, and therefore, the file was placed before the A.D.M., Nagour. The facts reveal otherwise. The order-sheet of the Court of S.D.M. Merta does not have any noting that the file was presented in the said Court on 15.5.2012 and thereafter as the officer was on leave it was sent to the A.D.M. Nagour on the ground that A.D.M. Nagour was a link Court holding the charge in the absence of S.D.M. Merta. The S.D.M. Merta's order-sheet dated 21.5.2012 rather reads that S.H.O. did not submit compliance report in compliance of the order dated 7.5.2012. The S.D.M. Merta's order-sheet dated 21.5.2012 rather reads that S.H.O. did not submit compliance report in compliance of the order dated 7.5.2012. These facts show that the proceedings which were taken on 15.5.2012 were executed clandestinely and in a thoroughly irregular fashion. The case no, which is mentioned in the impugned order is 8/2012 whereas the case no. mentioned in the proceedings of the S.D.M. Merta was 4/2012 which fact also casts a cloud of doubt on the bonafides of the proceedings undertaken in the Court of the A.D.M. Nagour. Therefore, it is necessary to direct the Collector, Nagour to hold an enquiry into the matter in the manner in which the proceedings were taken by the A.D.M. Nagour, He shall submit report to this Court within two months. 8. The miscellaneous petition is allowed and the order dated 15.5.2012 passed by the A.D.M. Nagour being illegal perverse and absolute abuse of the process of the Court is hereby quashed. A copy of this order be sent to the Collector, Nagour for compliance.