Madhya Pradesh High Court
Vishnu Prasad vs Preetibala on 4 December, 2015
M.Cr.C. No.3521/2015 04.12.2015
Shri R. R. Bhatnagar, learned counsel for the applicant. Shri Vivek Singh, learned counsel for the non-applicant. They are heard.
This petition has been filed by the applicant being aggrieved by the order dated 21.04.2015 passed in Cr. R. No.68/2015 passed by the Additional Session Judge, Mandsaur whereby learned Revisional Court confirmed the order dated 18.03.2015 passed by the SDM, Mandsaur in Case No.745/2014/97-98.
The sole contention of the learned counsel for the applicant is that in an application under Section 97 of the Cr.P.C., learned SDM, Mandsaur invoked the aforesaid proceeding and without recording any statement of the child, on the basis of statement made by the non-applicant, allowed the application and the aforesaid order has been affirmed by the Revisional Court. The contention is that in view of the law laid down by this Court in the matter of Pushpa Ramesh Kumar Patwa vs. Ramesh Kumar Badri Prasad and another reported in 2000(3) MPLJ 268, in exercise of power under Section 97 of the Cr.P.C., a Magistrate cannot issue a direction for production of the child from the custody of the father and direct that the child shall be in the custody of the mother because the custody of the child with the father does not amount to wrongful confinement and thereby no offence is committed attracting the provisions of Section 97 of the Cr.P.C.
Learned counsel for the non-applicant has drawn my attention to the decision in the case of Duryodhan Mahanta vs. Saraswati Mahanta reported in 1992 Cri.L.J. 2231 which states that while dealing with the issuance of a search- warrant issued at the instance of mother for custody of the child under five years of the Court held that such direction was not contemplated in terms of section 97 of the Code. He has also relied upon the judgement of Apex Court in the case of Ramesh vs. Smt. Laxmi Bai passed in Cr. Appeal No.787/1997, which reads as follows :-
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 with 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.
In view of the aforesaid, the proceeding initiated by the non-applicant is wholly without jurisdiction and the same is set aside meaning thereby, the application filed by the applicant is allowed and the orders dated 21.04.2015 and 18.03.2015 passed by the Courts below is hereby set aside, with a direction to the parties to take appropriate steps by initiating proceedings under the Guardians and Wards Act, 1890 for custody of the child and in the meanwhile or until further orders passed by the learned Court, under the Guardian and Wards Act, status-quo in respect of custody of the child, as it exists today shall be maintained.
With the aforesaid, M.Cr.C. No.3521/2015 is allowed and stands disposed of.
(P. K. Jaiswal) Judge gp