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Vide This Order I Shall Dispose Of A ... vs Ved Prakash (Respondent No.1 Now ... on 25 July, 2011

               IN THE COURT OF MS. NISHA SAXENA: ADDL. SESSIONS 
                    JUDGE­05(NE): KARKARDOOMA COURTS: DELHI. 


        Cr. R. No.04/2011


        Jai Ram s/o Late Sh.Sohan Pal Gupta,
        R/o D­1/769, Gali NO.7­B, 
        Shiv Gali, Ashok Nagar,
        Delhi­110093.
                                            Versus


        1. Ved Prakash @Pappu s/o Late Sh.Devaki Nand,
        R/o Village Sarota, PS Ujhiyani,  Distt. Badaun, U.P.


        2.The State 

        ORDER:

­

1. Vide this order I shall dispose of a revision petition filed u/s 397/399 Cr.P.C. on behalf of the revisionist Jai Ram against the order dated 19.02.2011 passed by Ld. MM Ms. Bhawani Sharma while disposing of an application u/s 156(3) Cr PC in the complaint case titled as Jai Ram Vs Ved Prakash (respondent No.1 now deleted).

2. I have gone through the order passed by the Ld. M.M. and the entire trial court record.

3. The brief facts are that the respondent No.1 was residing at H.No.D­ 1/633, Gali No.13, Ashok Nagar, Delhi. That respondent No.1 Ved Cr. R. No. 04/11 1/6 Prakash @ Pappu used to visit the house of the revisionist and would shower his love and affection on his daughter Kajal aged about 7½ years as he was not having any child of his own. On 25.8.2010, at about 7 P.M., he took away the minor daughter of the revisionist. The revisionist was out of station. On 26.8.2010, he was informed by his wife regarding taking of child by respondent Ved Prakash @ Pappu. The revisionist searched the respondent alongwith landlord of the respondent namely Mahesh chand Gautam and his other associates namely Narender and Harish and went to the village of the respondent and requested him to handover the minor daughter. On this, the respondent demanded Rs.1,50,000/­ from the revisionist and refused to handover the minor daughter of the revisionist. The respondent also threatened the revisionist to kill his minor daughter if his demand of Rs.1,50,000/­ was not fulfilled. He went to the Police station Ujhiyani, Distt. Badaun (U.P.) for making the complaint against the respondent No.1 but the police did not lodge his FIR on the pretext that the FIR will be registered only in Delhi. On 31.8.2010, the revisionist went to the Police Station Jyoti Nagar, Delhi, for lodging the FIR but no action was taken by the police. It has been stated that respondent No.1 has committed offences punishable u/s 363/364/384/369 IPC.

4. A status report was called from the police. In the status report dated 18.10.2010, it was reported that the court had issued search warrants for Cr. R. No. 04/11 2/6 production of the minor child Kajal and the child was found in possession of respondent No.1 Ved Prakash @ Pappu. On enquiry, he came to know at village Sarota, P.O. Kachhla, Badaun U.P. that the child had been living in village Sarota with the respondent for about 6/7 years and she was studying in a government school in class I. Her name was found in school record and as per school record the name of child's father was Ved Prakash. In the ration card of the respondent No.1 Ved Prakash the name of the child was mentioned. As per the statement of respondent No.1 Ved Prakash, the child had been in his custody since she was 6 days old and before the birth of the child there was an agreement between the revisionist and respondent No.1 that on birth of the child, the custody of the child would be handed over to the respondent No.1 as he had no child of his own.

5. In the instant case, the child was recovered from the possession of respondent NO.1 (now deleted) in pursuance of search warrants issued by the Ld. M.M. vide order 1.10.2010. After recovery, the child was sent to Child Welfare Committee as she was under 18 years of age. Order passed by Ms. Mamta Sahai, Chair Person, Child Welfare Committee, Bench of Magistrates, Govt. of NCT of Delhi dated 4.1.2011 is also filed on record, the relevant portion of which is as under:­ " This Committee vide order dated 19.10.2010 (annexure) had sent the child to Matri Chhaya for Cr. R. No. 04/11 3/6 her safety. Further, both parties were called and mother was called again on 29.10.2010. It was realised that further inquiry was required and HAQ:

centre for Child Rights was contacted for the same.

A background check was ordered to be conducted by DPO Badayun which has been received by this Committee. The documents that were produced before this Committee show that the child has been living in Badayun and goes to school there. Further all records except the birth certificate show Kajal as daughter of Mr. Ved Prakash. On the third date of the proceedings before this Committee on 1.12.2010 only Ved Prakash was present and no representation was put forth by Mr.Jai Ram. Ved Prakash and his wife had put forth two applications for meeting of the child at Matri Chhaya whereas Mr. Jai Ram has approached this Committee to meet the child only once. An inquiry (annexure) was conducted on the basis of which this Committee has decided to grant temporary restoration of the child to Mr. Ved Prakash. The Committee also recommends that Mr. Ved Prakash approach the appropriate court for getting guardianship of the child".

6. During the course of arguments it was submitted that the child has been restored to respondent No.1 by Child Welfare Committee. Ld. Counsel for the revisionist states that the adoption is not as per Hindu Adoptions and Maintenance Act, 1956 and since the alleged adoption, if any, is in contravention of the Act, the same is void and states that he would undertake available legal remedies before appropriate forum for Cr. R. No. 04/11 4/6 claiming the custody of the child.

7. Vide order dated 19.2.2011, Ld. M.M. dismissed the complaint u/s 156(3) Cr.P.C. and asked the revisionist to lead pre­summoning evidence. Ld. M.M. also relied upon M/s Skipper Beverages Pvt. Ltd. vs State 2001 IV AD(Delhi). Ld. M.M. has observed in her order that the revisionist / complainant himself is in position to collect all the evidences and for collecting the same intervention of police is not required. I do not find any fault in the observation made by Ld. M.M. The powers conferred u/s 156(3) Cr.P.C. on a Magistrate is to be exercised judiciously and not in a mechanical / routine manner. In case titled Gulab Chand Upadhyay vs State of U.P. & Ors., 2002 Cri L J 2907, Allahabad H.C. in para 24 observed that where accused with his name and address are known to the complainant the witness of the evidence are also known to him and it is not a case where any other material evidence is required to be collected and called or preserved, then it is not a case where any investigation was required by the police for launching a successful prosecution.

8. In view of the above, I am satisfied that the order passed by Ld. M.M. is correct, legal and proper and no interference is called for the same. The revision petition is, accordingly, dismissed. Copy of this order be sent to Ld. Trial Court.

Cr. R. No. 04/11 5/6

9. Revision file be consigned to record room. TCR be sent back along with copy of this order.

        Announced in open court                                    (Nisha Saxena)
        Dated:25.07.2011                             Addl. Sessions Judge­05(NE):
                                                         Karkardooma Courts, Delhi. 




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