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2017 DIGILAW 955 (JK)

Davinder Lal v. SHO Police Station, Akhnoor

2017-10-24

M.K.HANJURA

body2017
JUDGMENT : M.K. Hanjura, J. 1. Taking refuge under the inherent powers vested with this Court under Section 561-A of the Cr.P.C., the petitioner seeks the quashment of the order dated 28.08.2017, impugned herein, passed by the learned Munsiff, Akhnoor, in an application titled 'Sushma Kumari v. Devinder Kumar & Anr.' filed under Section 100 of the Code of Criminal Procedure, on the grounds, inter alia, that the order of the trial Court amounts to the abuse of the process of law. It has resulted in the miscarriage of justice. Learned Munsiff, Akhnoor, has issued a search warrant under Section 100 of the Code of Criminal Procedure, directing the SHO Police Station, Akhnoor, respondent No. 1 herein, to recover, proforma respondent No. 3-the son of the petitioner and respondent No. 2 from the custody of the petitioner. The learned Munsiff, Akhnoor, has passed the order in a mechanical manner without application of mind to the peculiar facts and circumstances of the case. The petitioner has proceeded to state that resort can be had to Section 100 of the Code of Criminal Procedure only if a person is in confinement and he has been confined under circumstances that the confinement amounts to an offence. The custody of the child in the hands of his father, who is the petitioner herein, cannot be wrongful/illegal as has been held in a catena of judicial pronouncements. In the premises, the petitioner has prayed that the order passed by the learned Judicial Magistrate be quashed. Heard and considered. 2. To canvass his argument that the Court below has erred in law in issuing a search warrant here in this case, the petitioner has put explicit reliance on the case of 'Ramesh v. Laxmi Bai', (1998) 9 Supreme Court Cases 266, in which the Apex Court was confronted with a situation similar to the one as projected here in this petition and the Court held as under:- "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 Cr.P.C. in the established facts of the case is untenable. Section 97 Cr.P.C. prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father. Under the circumstances, we are of the opinion that the orders of the High Court dated 17.07.1996 and that of the learned Additional Sessions Judge dated 09.07.1996 cannot be sustained and we accordingly set aside the orders and directions given therein." 3. The High Court of Judicature at Bombay in case titled 'Sh. Pramod V. Kamble v. Sou. Jyoti P. Ramble & Anr.', reported in (2012) AIIMR(Cri) 2766, after taking a cue from the dictums of law laid down in various judgments of law held as under in a case almost identical to the present one:- "The learned Additional Sessions Judge did not deal with these findings recorded by the Magistrate while passing the impugned order. In fact, para 6 of the order passed by the learned Additional Sessions Judge, makes an interesting reading and all that can be said from the observations made in the para, is that the learned Additional Sessions Judge was of the view that, in any case the custody of the child must remain or be given to the mother only. Thus, with whom the custody of the child should be, was the only question that was considered by the Additional Sessions Judge and not 'whether there was a case for issuing search warrant under the provisions of Section 97 of the Code'. The learned Sessions Judge also did not consider whether the disbelief in the version of the mother to the effect that the child was suddenly taken away from her by the father, as formed by the Magistrate, was unreasonable or without any basis. The learned Additional Sessions Judged forgot that the question of custody of the child could be dealt with more appropriately by a Civil Court. It is clear that the mother did not want to take a recourse to criminal proceedings for the alleged assault and snatching away of the child, in which case, the facts could be examined by the investigation, agency; but was merely interested in securing the custody of the child by resorting to the provisions of Section 97. Thus, the mother neither wanted the allegations leveled by her to be investigated into, nor did she want examination of the issue of the custody of the child, by a Civil Court. Thus, the mother neither wanted the allegations leveled by her to be investigated into, nor did she want examination of the issue of the custody of the child, by a Civil Court. The learned Additional Sessions Judge failed to grasp the significance of this, and consider, in this context, whether the disbelief in the version of the mother, formed by the Magistrate, which was indicated soberly by him, in his order, could be said to be erroneous or unreasonable. The view of the Magistrate, which was certainly a possible view, was not liable to be disturbed, in revisional jurisdiction." 4. Applying the ratio of the law laid down above to the facts and circumstances of the instant case, the learned Magistrate in issuing the warrant under Section 100 of the Code of Criminal Procedure appears to have got swayed by the fact that the mother and not the father is entitled to the custody of the child. The fact that cannot be lost sight of is that the learned Magistrate, in issuing the warrant, was not functioning in the capacity of a Civil Court asked to determine the rights of the petitioner and the respondent wife viz-a-viz the custody of the child. The point of consideration here in this case was whether a search warrant under the provisions of Section 100 of the Code of Criminal Procedure could be issued when the custody of the child was with the father. The custody of the child with the father cannot fall within the definition of the term 'illegal confinement'. Therefore, respondent No. 2 could not invoke the aid and assistance of this provision of law in carving out a case in her favour. Viewed in the context of what has been said and done above, the petition of the petitioner merits to be allowed as it has resulted in the miscarriage of justice. Accordingly, the order dated 28.08.2017 passed by the learned Munsiff, Judicial Magistrate, Akhnoor, in the application titled 'Sushma Kumari v. Devinder Kumar &. Anr.' by which respondent No. 1 was directed to execute the warrant issued under Section 100 of the Code of Criminal Procedure is quashed. However, before parting, it needs to be clarified that nothing here in this case shall be construed as an opinion on the merits of the controversy regarding the custody of the minor child. Anr.' by which respondent No. 1 was directed to execute the warrant issued under Section 100 of the Code of Criminal Procedure is quashed. However, before parting, it needs to be clarified that nothing here in this case shall be construed as an opinion on the merits of the controversy regarding the custody of the minor child. The respondent No. 2 shall be at liberty to take recourse to the provisions of the Guardians and Wards Act for deciding the custody of the child. The record summoned in the case shall be transmitted to the trial Court along with a copy of this order.