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2017 DIGILAW 1910 (RAJ)

GIRIRAJ SINGH v. STATE OF RAJASTHAN

2017-08-26

PUSHPENDRA SINGH BHATI

body2017
ORDER : PUSHPENDRA SINGH BHATI, J. 1. Petitioner has preferred this misc. petition under section 482 of Cr.P.C., 1973 against the order dated 21.10.2016 passed by Addl. District Magistrate (City-I) Jodhpur, as well as for quashing of proceedings pending before it in case No. 63/2016, whereby search warrant has been issued for securing the custody of children of the petitioner and respondent No. 2. 2. At the outset, learned counsel for the petitioner submits that section 97 of the Cr.P.C., 1973 is only issue to search warrant for a person wrongly confined. Admittedly, the petitioner is father of the children. 3. Learned counsel for the petitioner has stated that the respondent is also a mother and therefore, she has a right to have custody of the child and also to visit her child. 4. After hearing counsel for the parties and perusing the record of the case, this Court is of the opinion that section 97 of the Cr.P.C., 1973 has a definite legislative intention for bringing to an end illegal confinement of a person. Admittedly, the custody of the father cannot be said to be illegal unless ordered by the competent court. Thus, the proceedings of section 97 of Cr.P.C., 1973 cannot be maintained. 5. This Court has also taking a note of the fact that the order passed by a co-ordinate Bench of this Court in D.B. Habeas Corpus No. 153/2016 in Smt. Hawa Kanwar v. State of Rajasthan & Ors., which reads as follows :- "In this habeas corpus petition, the petitioner has prayed for directions to the respondents to produce her son Hemandra @ Honey and Ridhima before the Court and their custody may be handed over to her. On 02.12.2016, Mr. Vineet Jain, Advocate appearing on behalf of respondent No. 5 was directed to inform the respondent No. 5 to remain present before this Court along with children on 05.12.2016. Today, the respondent No. 5 as well as both the children are present in person. Both the children are not ready to go with the petitioner though they are minor but happy with the father - respondent No. 5. After ascertaining the facts, we are of opinion that both the children are happy with the father and does not want to go with the petitioner-mother. Both the children are not ready to go with the petitioner though they are minor but happy with the father - respondent No. 5. After ascertaining the facts, we are of opinion that both the children are happy with the father and does not want to go with the petitioner-mother. In view of above, it is obvious that both the children are in custody of their father, therefore, they are not in illegal detention of the respondent No. 5. Accordingly, the instant habeas corpus petition is hereby dismissed. However, if any grievance remains to the petitioner with regard to custody of the children, she will be at liberty to invoke remedy available in law." 6. The present misc. petition is therefore allowed and all the proceedings in pursuance of the case No. 63/2016 pending under section 97 and 98 of the Cr.P.C., 1973 including the impugned order dated 21.10.2016 is quashed and set aside. However, the respondent's mother shall have a right to visit the children every fortnight and for this counsel for the petitioner has accepted that there is no impediment for the mother to meet her children, once in 15 days. The place of meeting shall be mutually decided by officers of the Court Shri Vineet Jain and Shri Umesh Shrimali.