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2016 DIGILAW 242 (JK)

SHAMIM AHMED v. ASHIYA BEGUM

2016-04-30

DHIRAJ SINGH THAKUR

body2016
JUDGMENT : Dhiraj Singh Thakur, J. Present petition is one under Section 561-A of the Criminal Procedure Code, seeking to quash the order dated on 27.01.2016, passed by the learned Munsiff, Judicial Magistrate, Bhaderwah, whereby the learned Magistrate has invoked its powers under Section 100 of the Jammu and Kashmir Criminal Procedure Code, Svt. 1989, ordering search of two minor children who are stated to be in the custody of the petitioner herein, who is otherwise their father. 2. The basis of the order for issuing search warrants lies in the fact that both the children are minors being two and a half years' and one year old and, therefore, require breast feeding. Reliance was placed upon a judgment of this court in the case reported as Bashir Ahmed Mir and Ors. v. Rubeena Akhtar, 2011 SLJ 687 : 2011 (1) JKJ 937 [HC], wherein this court had held that there was no jurisdictional error in issuing search warrants in a case where custody of a minor was handed over to the mother by invoking powers under Section 100 of the Cr. P.C. 3. Counsel for the respondent justified the passing of the order impugned on the ground that the only consideration which ought to weigh while exercising powers under Section 100 of Cr. P.C., was the welfare of the children and their rightful custody and that no illegality had been committed by the court below. Reliance was placed upon Purshottam Wamanaro Thakur v. Warsha, W/o Narendra Thakur, 1991 Law Suit (Bom) 403, Bashir Ahmad Mir and Ors. v. Rubeena Akhter, 2011 (1) JKJ 937 [HC] : 2011 SLJ 687, SK Razak v. Riyasathbi, 1974 Law Suit(Bom) 69 and Savitben Mahendrabhai Parmar v. State of Gujarat, 2013 Cri.L.J. 4472, to buttress the proposition that in case where the children were of tender age, exigencies of situation demanded restoration of their custody to the mother at the earliest as not doing so would be against the welfare of the minors. 4. It was urged that asking the mother to take recourse to the relevant provisions of law available for taking the custody of the minors, under the circumstances would be time consuming and detrimental to the life of the children who require tender care and feeding by the mother. 5. Heard counsel for the parties. 6. 4. It was urged that asking the mother to take recourse to the relevant provisions of law available for taking the custody of the minors, under the circumstances would be time consuming and detrimental to the life of the children who require tender care and feeding by the mother. 5. Heard counsel for the parties. 6. Section 100 of the Jammu and Kashmir Criminal Procedure Code, which is analogous to Section 97 of the Central Cr.P.C. envisages as under:- "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." 7. On a reading of the aforementioned provision, it is clear that before a Search warrant can be directed to be issued, the Magistrate must satisfy himself: (a) that a person is confined; and (b) that confinement amounts to an offence. 8. In the present case, on a perusal of the order impugned, it can be seen that the learned Magistrate has nowhere recorded any satisfaction that the confinement by the petitioner of two minor children was, in fact, an offence. All that has been recorded is the desirability of handing over the custody of the minor children to the mother in view of their tender age. 9. The custody of children with the father can never be treated to be an offence only because the children happened to be minors. 10. The issue as to whether search powers as prescribed under Section 100 of the Cr.P.C., could be exercised to handover the custody of a child who was living with his own father, was dealt with by the Apex Court in the case reported as Ramesh v. Laxmi Bai, 1998(9) SCC 266 . What was held by the Apex Court in paragraph 4 of the judgment in the aforementioned case is reproduced herein below:- "4. What was held by the Apex Court in paragraph 4 of the judgment in the aforementioned case is reproduced herein below:- "4. From a perusal of the impugned order of the High Court, it appears to us that though the points which should weigh with a Court while determining the question of grant of custody of a minor child have been correctly detailed, the opinion of the High Court that the revisional Court could have passed an order of custody in a petition seeking search warrants under Section 97, Criminal Procedure Code in the established facts of the case is untenable. Section 97, Criminal Procedure Code prima facie is not attracted to the facts and circumstances of the case when the child was living his own father. Under the circumstances, we are of the opinion that the orders of the High Court dated 17th July, 1996 and that of the learned Additional Sessions Judge dated 9th July, 1996, cannot be sustained and we accordingly set aside the orders and the directions given therein. 11. Applying the ratio of the aforementioned judgment of the Apex Court to the facts of the present case, it will be seen that the petitioner is the father of two minor children and, therefore, having their custody cannot per se be said to be an offence for which powers under Section 100 of the Cr. P.C. could have been invoked by the court below. 12. For the reasons mentioned above, this petition is allowed. Order impugned dated 27.01.2016, passed by the learned Munsiff, Judicial Magistrate, Bhaderwah, is quashed. It is, however, made clear that nothing said here-in-above shall prejudice the rights of the respondent to claim custody of the minor children in accordance with law.