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2013 DIGILAW 263 (JK)

Farooq Ahmad Dar v. Mohd. Amin Ganai

2013-05-01

JANAK RAJ KOTWAL

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1. Petitioners have invoked inherent jurisdiction of this Court under sec. 561-A of the Code of Criminal Procedure (hereinafter the Code) seeking quashing of the orders dated 4.2.2013 and 7.2.2013, whereby ld. Judicial Magistrate (Munsiff) Pampore, has issued search warrant under sec. 100 of the Code directing SHO Police Station, Pampore to search for the person of Aafee Jan (hereinafter to be referred as the minor) and produce her in the Court. Impugned is also the order dated 22.3.2013 whereby ld. Sessions Judge, Pulwama has dismissed the revision petition filed by the petitioners against the orders passed by the ld. Magistrate. The petitioners have also sought quashing of the proceedings under sec.100 of the Code pending before the Court of ld. Magistrate. 2. I have heard ld. counsel for the parties and have perused the record. 3. Briefly, facts relevant for the disposal of this revision petition are that petitioner-1, Mohd Farooq Dar, is the father of the minor. Respondent-2, Mst. Jana is the maternal grandmother and respodnent-1, Mohammad Amin Ganie, is maternal uncle of the minor. On 4.2.2013 the respondents moved an application before the ld. Magistrate contending that daughter of respondent-2 was married with petitioner-1 and the minor was born out of their wedlock. Mother of the minor died in suspicious circumstances when the minor was six months old. After the death of her mother, the minor remained with and has been brought up by the respondents. The respondents alleged that on 2.2.2013 when they along with the minor were on their way towards Pampore, petitioners-1, 3 & 4 intercepted the vehicle at Konibal, manhandled the respondents and lifted the minor forcibly. The matter was reported by them to the concerned Police. They, therefore, sought issuance of search warrant for producing the minor before the court alleging that the minor was in illegal confinement. The ld. Magistrate after recording the statements of respondent-1 and one witness produced by the respondents took the view that a ground for issuance of search warrant was made out and issued search warrant directing the SHO, Police Station, Pampore to search for the minor and produce her before the Court. 4. Petitioner-1 caused his appearance through counsel before the Court of the ld. Magistrate on 7.2.2013 and on his application ld. 4. Petitioner-1 caused his appearance through counsel before the Court of the ld. Magistrate on 7.2.2013 and on his application ld. Magistrate kept the order dated 4.2.2013 in abeyance and directed petitioner-1 through his counsel to ensure presence of the minor before the Court on 11.2.2013 making it clear that in case of his failure fresh search warrant will be issued. 5. Petitioners, however, challenged the orders dated 4.2.2013 and 7.2.2013 passed by the ld. Magistrate in a revision before the ld. Sessions Judge, Pulwama mainly on the ground that search warrant under sec. 100 of the Code could not have been issued against the real father. He also alleged that the minor is living with her father and a father cannot be supposed to keep his daughter under wrongful confinement. 6. The ld. Sessions Judge, however, after consideration of the matter, took the view that the orders passed by the ld. Magistrate does not suffer from any illegality, incorrectness infirmity and the power under sec. 100 of the Code was rightly invoked. The ld. Sessions Judge took note that the minor daughter was in the custody of 1 respondents till 2.2.2013 when she was allegedly taken away forcibly by petitioner-1 though she was not already living with him. The ld. Sessions Judge, therefore, dismissed the revision petition. While dismissing the revision petition, ld. Sessions Judge observed; "the ld. trial Magistrate is excepted to be not influenced by the rejection of the instant revision petition and he is under an obligation to ascertain the fact of alleged confinement and pass orders accordingly. Minors often remain influenced by the one or the other party from whose custody he/she is immediately removed in execution of a search warrant and the Magistrates under such situation are expected to read the heart of minor confines in isolation. However, it is very needful to mention that any order to be immediately passed by the learned Magistrate u/s 100 Cr.P.C shall be subject to the orders of a competent Guardians court." The ld. Sessions Judge, therefore, directed the parties to appear before the trial Court on 26.3.2013. 7. Petitioners have now approached this Court. 8. Petitioners in this petition have challenged the impugned orders as also the proceedings under sec. 100 of the Code by and large on the same grounds, which were taken before the Ld. Sessions Judge. The ld. Sessions Judge, therefore, directed the parties to appear before the trial Court on 26.3.2013. 7. Petitioners have now approached this Court. 8. Petitioners in this petition have challenged the impugned orders as also the proceedings under sec. 100 of the Code by and large on the same grounds, which were taken before the Ld. Sessions Judge. The ld. counsel for the petitioners sought to project, which seems to be the main plank of his submission, that no warrant of search for a child can be issued against father of the child who is natural guardian. In support he relied upon Vinod Gandotra v. Geeta Gandotra, 1999 KLJ 316. It was further submitted that the minor is residing happily and is in safe hands of her father and grandmother, petitioner-2 and initiation of proceedings under sec. 100 of the Code and issuance of search warrant is sheer abuse of the process of law. It is also contended in the petition that there was a compromise between petitioner-1 and responent-1, copy whereof has been annexed as annexure-'PD'. 9. Per contra, ld. counsel for the respondents submitted that the question of guardianship cannot be raised in an application under sec. 100 of the Code before the ld. Magistrate or in this petition before this Court. 10. Sec. 100 of the Code reads: "100. Search for persons wrongfully confined. If any Magistrate of the first class or Sub-Divisional Magistrate 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." 11. Sine qua non of exercising power under sec. 100 of the Code is that on the material produced before him the Magistrate should have a `reason to believe' that the person for whose search, warrant is sought to be issued `is confined under such circumstances that the confinement amounts to an offence'. Sine qua non of exercising power under sec. 100 of the Code is that on the material produced before him the Magistrate should have a `reason to believe' that the person for whose search, warrant is sought to be issued `is confined under such circumstances that the confinement amounts to an offence'. Magistrate at that stage cannot be expected to hold a regular inquiry but, before issuing the search warrant, on the basis of the statements recorded by the Magistrate and the material produced by the applicant, the Magistrate must arrive at a reasonable conclusion that a person has been wrongfully confined. If on consideration of the material such conclusion is not possible, warrant should not be issued. 12. Here, it cannot be disputed that the ld. Magistrate had sufficient material to believe that the minor after the death of her mother had been brought up by her maternal uncle and maternal grandmother, that is, the respondents and was forcibly removed from their custody by the petitioners-1, 3 and 4 on 2.2.2013. This was evident from the factum of the lodging of the FIR by respondent-1 about the occurrence, having taken place on 2.2.2013. Once there was material to show that the father of the minor and other petitioners had forcibly removed the minor from custody of the respondents, the natural corollary is that her subsequent custody with and in the house of respondents amounts to wrongful confinement. Whether the child is happy or not need not and cannot be presumed. 13. Contextually, it is important to note that petitioner-1 in his application moved before the ld. Magistrate on 6.2.2013 had not denied the incident having taken place on 2.2.2013 when he allegedly snatched the minor from the respondents. He has not denied the incident in the petition before this Court too. The document produced as annexure-PD with this petition confirms that the minor had been brought up by the respondents from the last 11 years, though on 10.1.2013 there was a compromise where under respondent-1 was required to make arrangement for sending the minor to the house of her father/petitioner-1 on 1.2.2013 and it was further provided that, in case of his failure, the minor will be forcibly handed over to her father. This supports respondents' contention that the minor was under their care and custody and lends credence to the act of snatching committed by the petitioner (father) and other petitioners. 14. In the same context, it is important to note that petitioner-1 has deliberately avoided to produce the minor before the ld. Magistrate for which sufficient opportunity was made available to him. The matter could have been sorted out had he done so. Petitioners, however, chose to invoke inherent powers of this Court for which no case is made out. No error can be said to have been committed by the ld. Magistrate in issuing search warrant nor can it be said that process of the Court has been misused. 15. Vinod Gandotra's case, supra, relied upon by the petitioners cannot support their case. Father's custody of the child in that case did not tantamount commission of any offence. The mother of the child was allegedly thrown out of the house and the child was kept by the father in his house. Question of custody in that circumstances pertained to civil law on the subject and sec. 100 of the Code had no application. 16. In this case child was in the care and custody of the maternal grandmother and uncle, that is respondents. Father even if natural guardian of a child cannot be allowed to secure his/her custody forcibly and in a crude manner. If he does so, that will be an unlawful and custody so secured will amount to unlawful confinement and sec. 100 of the Code would not be barred. 17. For all what has been said and discussed above, this petition is dismissed alongwith connected applications. Both the parties shall cause their appearance before the Court of Id. Magistrate on 06.05.2013. Ld. Magistrate is, however, directed to first provide reasonable time, not more than five days, to the petitioner (father) to produce the minor in the Court and proceed in the matter in accordance with law. In case of his failure to produce the minor, search warrant as already ordered shall follow. 18. Record be returned along with a copy of this order.