Karnataka High Court
Shri. Raziya W/O Riyazahamad Attar vs The State Of Karnataka on 27 March, 2018
Author: John Michael Cunha
Bench: John Michael Cunha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
ON THE 27TH DAY OF MARCH, 2018
BEFORE
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL PETITION NO.101790 OF 2017
BETWEEN
SMT. RAZIYA,
W/O RIYAZAHAMAD ATTAR,
AGE: 20 YEARS,
OCC: HOUSEHOLD WORK,
R/O: PENDARI GALLI,
BANHATTI,
DIST. BAGALKOT,
NOW AT: AWATIGALLI, GOKAK,
DIST: BELAGAVI.
... PETITIONER
(BY SRI. M.J.PEERJADE, ADV.)
AND
1. THE STATE OF KARNATAKA,
THROUGH P.S.I.
GOKAK TOWN POLICDE STATION,
REP. BY THE STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARANTAKA,
DHARWAD BENCH.
2. RIYAZAHAMAD GUDUSAB ATTAR
AGE: 25 YEARS,
OCC: WEAVER,
R/O: PENDARI GALLI,
BANHATTI,
TQ: JAMKHANDI.
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3. GUDUSAB NABISAB ATTAR
AGE: 50 YEARS,
OCC: WORKS ON SUPERSTITIONS,
R/O: PENDARI GALLI,
BANHATTI,
TQ: JAMKHANDI.
4. DULHANABI W/O GUDUSAB ATTAR
AGE: 45 YEARS,
OCC: HOUSEHOLD WORK,
R/O: PENDARI GALLI,
BANHATTI,
TQ: JAMKHANDI.
5. FAIROZ GUDUSAB ATTAR
AGE: 20 YEARS,
OCC: STUDENT,
R/O: PENDARI GALLI,
BANHATTI,
TQ: JAMKHANDI.
6. RUBINA D/O GUDUSAB ATTAR
AGE: 19 YEARS,
OCC: HOUSEHOLD WORK,
R/O: PENDARI GALLI,
BANHATTI,
TQ: JAMKHANDI.
... RESPONDENTS
(BY SRI.PRAVEEN K. UPPAR, HCGP FOR R1,
SRI. B.S.KUKANAGOUDAR, ADV. FOR R2 TO R6)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C., PRAYING THAT THE ORDER PASSED BY THE PRL.
CIVIL JUDGE AND JMFC COURT GOKAK IN PRIVATE COMPLAINT
NO.118 OF 2017 ON 07.08.2017 HANDING OVER OF CHILD'S
CUSTODY TO THE RESPONDENT NO.2/FATHER BE KINDLY
QUASHED AND KINDLY DIRECT THE TRIAL COURT TO HAND
OVER THE CHILD TO ITS' MOTHER/PETITIONER.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
This petition is filed under Section 482 of Cr.P.C. with the following prayer.
"Wherefore it is most respectfully prayed that the order passed by the Principal Civil Judge and J.M.F.C. court Gokak in Private Complaint No.118/2017 on 07.08.2017 handing over of child's custody to the respondent No.2/father be kindly quashed and kindly direct the trial court to hand over the child to its' mother/petitioner."
2. The petitioner is the wife of respondent No.2 - Riyazahamad Gudusab Attar. It is stated that their marriage was performed on 27.04.2014 as per the customary rites prevailing in the community. According to the petitioner, after the marriage she was ill-treated by her husband and her in-laws and hence, the parents of the petitioner brought her and the child to Gokak. On 02.07.2017 at about 11:00 a.m., the accused persons came to her parents' house and quarreled with the petitioner and forcibly snatched her minor child from her possession and went away threatening her. :4:
3. The petitioner filed a private complaint before the Principal Judicial Magistrate First Class, Gokak on 12.07.2017. Along with the complaint, she moved an application under Section 97 of Cr.P.C., supported by her affidavit. The learned Magistrate by order dated 14.07.2017 issued search warrant as sought for by the petitioner under Section 97 of Cr.P.C to the PSI, Gokak Town Police Station. Pursuant to this order, the child, then aged about 13 months was produced in the open Court through WPC on 17.07.2017.
4. The order passed by the learned Magistrate dated 17.07.2017 reads as follows:
"Adv. DNM has filed vakalat and memo with documents. It is submitted that the complainant left the husband with child when it was at the age of 1 month 10 days and it has adjusted with the family of accused No.1 and the child has also refused to go with its mother. It appears that there is lack of love and affection from mother side.
It is also submitted that there is chance of settlement and till one week, the custody has to be given to accused No.1 and his family in the interest of the child since it has been looked after by them :5: from the date when complainant left the child due to strife between her and her husband.
Hence, for the time being, even though child is at the age of 13 months, child is handed over to accused No.1.
Apart from this, the documents pertaining to child for medical check up are shown by the Accused and his family members. Hence, call on 26.07.2017."
The subsequent order sheet dated 26.07.2017 and 07.08.2017 reads as follows:
"The said male child is not produced today and time is prayed to produce due to ill-health of the child. Hence, for production of said child from accused No.1 by 07.08.2017."
"The said male child is produced before the Court. Adv. SBH and SSN have filed NOC vakalat for complainant. Memo with documents is filed by accused No.1. Heard.
The said child has cried when its mother takes. Hence, it appears, the custody of child has to be given, at this child, to its father. For production of child by 23.08.2017."
5. Learned counsel for the petitioner submits that the mother being the natural guardian, the custody of the child should not have been given to the father namely :6: respondent No.2. In support of this argument, learned counsel has placed reliance on the decision of the High Court of Allahabad in the case of Zahirul Hassan Vs. State of Uttar Pradesh reported in LAWS(ALL) 1987 6 3 and with reference to para Nos.7, 8 and 9 it is submitted that the mother is entitled to the custody (Hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained her puberty.
6. Per contra, the learned counsel appearing for respondent Nos.2 to 6 submits that there were serious differences between the petitioner and her husband after the marriage. The petitioner give birth to the male child on 10.03.2016. It was a premature birth. The health condition of the child was delicate and critical and most of the days it was kept in incubator at the hospital. The petitioner deserted the child in the hospital when it was hardly 1 month 10 days and went with her mother to her parents house on 22.04.2016 and did not return. Since 22.04.2016, respondent No.2, his father and family members have been taking care of the child and have :7: brought it up with love and affection. According to the respondents, with a view to avoid coming to the house of her husband, petitioner has filed a false complaint in P.C.No.118/2017 before the Prl. JMFC Court, Gokak. The allegations of cruelty and dowry demand made in the said complaint are totally false. After securing the child under the search warrant the child has refused to go with the petitioner as the child has no acquaintance with the petitioner.
Insofar as the maintainability of the petition is concerned, the learned counsel would submit that invocation of the jurisdiction of the Magistrate by the petitioner is illegal and contrary to the provisions of law. The proper remedy for the petitioner was to approach the competent Court under the Guardian and Wards Act and seek custody of the minor child. Instead, by making false allegations, the petitioner has invoked the jurisdiction of the learned Magistrate. The learned Magistrate without even taking cognizance of the alleged offence has issued search warrant contrary to the provisions of the Code. :8: Respondent No.2 being the father of the minor child, the custody of the child with the father cannot be termed as illegal. In support of this argument, learned counsel has placed reliance on the decision of this Court in the case of Dr.B.N.Krishna Prasad Vs. State of Karnataka and Others reported in 2008 (4) KCCR 2841, wherein it is held that the custody of the child with anyone of the parents cannot be termed as per se illegal or unlawful custody. Further, referring to another decision of this Court in the case of Capt. Vipin Menon Vs. State of Karnataka reported in ILR 1992 KAR 2622, learned counsel has emphasized that:
"A father of the child is a person who is entitled to the lawful custody of the child and he will not come within the scope of Section 361 of IPC, even if he takes away the child from the keeping of the mother. She may be a lawful guardian as against any others except the father or any other person who has been appointed as the legal guardian by virtue of an order of a competent Court. So long as there is no divestment of the right of the guardianship of a father, a father cannot be guilty of an offence under Section 361 of IPC".:9:
7. Learned HCGP appearing for respondent No.1 would submit that the procedure followed by the learned Magistrate in entertaining the complaint and passing the order on the application made by the petitioner under Section 97 of Cr.P.C. is not in accordance with law. The learned Magistrate having failed to take cognizance of the offence, the impugned order suffers from basic illegality and infirmity which calls for interference by this Court in exercise of the powers under Section 482 of Cr.P.C.
8. Having heard the learned counsel for the petitioner and in view of the rival contentions urged by the parties, the points that arise for consideration are:
1. Whether the petition under Section 482 of Cr.P.C.
is maintainable under the fact situation of the present case?
2. Whether the impugned order passed by the learned Magistrate suffers from error of law and fact calling for interference by this Court? POINT NO.1:
9. The learned counsel for the petitioner, placing reliance on the judgment of the Hon'ble Supreme Court in : 10 : the case of Madhu Limaye Vs. State of Maharashtra reported in (1977) 4 SCC 551 with reference to para No.10 would submit that in the absence of any bar under the Code, the inherent jurisdiction of the High Court under Section 482 of Cr.P.C. is not taken away and hence, this Court has jurisdiction to decide the question raised by the petitioner.
10. In para No.10 of the aforesaid decision, the Hon'ble Supreme Court on analysing the scope and ambit of Sections 397 and 482 of Cr.P.C. has held as under:
"As pointed out in Amar Nath case the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in : 11 : almost the same terms as it was in the 1898 Code. On a plain reading of section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court", But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is-the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party.
But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely : 12 : necessary, then nothing contained in section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial, after proper sanction will not be barred on the doctrine of autrefois acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure, the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with section 482 of the 1973 Code, even : 13 : assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
(underlining supplied)
11. In Amit Kapoor Vs. Ramesh Chander and Another (2012) 9 SCC 460, in para No.21 the Hon'ble Supreme Court has observed that:
"It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section 482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense.": 14 :
12. In the instant case, undisputedly the order challenged by the petitioner is an interim order. By virtue of the bar contained under Section 397(2) of Cr.P.C. a revision against the interim order is not maintainable. But the impugned order has brought about a situation, which if not interfered with will turn out to be either abuse of the process of Court or will lead to miscarriage of justice. In the said circumstances, there being no other efficacious remedy to the petitioner other than to invoke the jurisdiction under Section 482 of Cr.P.C., as held in the above decision, the residuary power of the High Court under Section 482 of Cr.P.C. is required to be exercised in the fact situation of the present case. Hence, having regard to the relief claimed by the petitioner, the petition under Section 482 of Cr.P.C. is held maintainable. Consequently, the objection raised by the learned counsel for the respondents in this regard is rejected.
POINT NO.2:
13. Petitioner has invoked the jurisdiction of the learned Magistrate under Section 200 of Cr.P.C. alleging : 15 : commission of offences under Sections 498(A), 363, 341, 504 and 506 of IPC and Sections 3 and 4 of the Dowry Prohibition Act. A bare perusal of the complaint reveals that except the allegations of cruelty in the matrimonial house, the complaint does not disclose the elements of the offences under Sections 363, 341, 504 and 506 of IPC. With regard to the provisions of the Dowry Prohibition Act, a general allegation has been made that after the marriage the accused persons were demanding dowry in the form of gold and money to the extent of Rs.1 lakh. But at the same time, petitioner has unequivocally stated in the complaint that on account of the differences between herself and respondent No.2, she has been residing with her parents. Though in the complaint she has alleged that on 11.07.2017 in the evening at 5.00 p.m. the accused persons came to the house of her parents and forcibly snatched the child, there is nothing on record to show that soon after the incident the petitioner either lodged any complaint or took any step to bring back the child. The private complaint is filed only on 12.07.2017. The learned : 16 : Magistrate has not taken cognizance of any of the offences alleged against the petitioner. Instead, entertained the application moved by the petitioner under Section 97 of Cr.P.C. and straightaway issued a direction to the police to search for the child. This procedure adopted by the learned Magistrate in my view is opposed to the provisions of the Code.
14. In this context, it may be useful to refer to the decision of the Hon'ble Supreme Court in the case of Tula Ram and Others Vs. Kishore Singh reported in (1977) 4 SCC 459 wherein the procedure to be followed by the Magistrate on receiving the complaint under Section 200 of Cr.P.C. is detailed as under:
"The expression "taking cognizance" in Section 190 of the Code of Criminal Procedure, 1973 merely means judicial application of mind of the Magistrate to the facts mentioned in the complaint with a view to taking further action. Thus what section 190 contemplates is that the Magistrate takes cognizance once he makes himself fully aware of the allegations made in the complaint and decides to examine or test the validity of the said allegations. Where a : 17 : Magistrate chooses to take cognizance he can adopt any of the following alternatives:
(a) He can peruse the complaint and if satisfied that there are sufficient grounds for proceeding he can straightaway issue process to the accused but before he does so he must comply with the requirements of Section 200 and record the evidence of the complainant or his witnesses.
(b) The Magistrate can postpone the issue of process and direct an enquiry by himself.
(c) The Magistrate can postpone the issue of process and direct an enquiry by any other person or an investigation by the police."
15. In the instant case, the learned Magistrate has miserably failed to follow any of the measures contemplated under Section 190 of the Code. Learned counsel for the petitioner however defends the action taken by the learned Magistrate contending that the learned Magistrate has acted as per Chapter 12 of the Code and has directed investigation to the police under Section 156(3) of Cr.P.C. But I do not find any such order having been passed by the learned Magistrate as contended by the learned counsel. Learned Magistrate has not even taken initial cognizance of the complaint or the : 18 : offences alleged in the complaint. Even with regard to the order passed by the learned Magistrate to issue search warrant, the order sheet reflects that the learned Magistrate has not applied his mind even to the allegations made in the said complaint. Undisputedly, respondent No.2 is the father of the minor child. The custody of the child with the father cannot be termed as illegal custody. In that view of the matter, the trial Court ought not to have issued a search warrant to produce the child, based on the allegation made in the complaint.
16. Be that as it may, the subsequent proceedings conducted by the learned Magistrate indicate that on production of the child, the child refused to go with the mother. The facts noted by the learned Magistrate in the order sheet dated 17.07.2017 completely falsifies the allegations of the petitioner that the child was snatched away by respondent No.2. On the other hand, these facts probabalise the contention of respondent No.2 that the petitioner though is the mother of the child, abandoned the child when it was hardly one month old. Since then the : 19 : child has been looked after by respondent No.2 and his family members namely respondent Nos.2 to 6. The trial Court has even noted the behavior of the child and has observed that the mother had no love or affection whatsoever towards the said child. In the said circumstances, it is not proper for this Court to disturb the custody of the child.
17. On point of law, though the learned counsel for the petitioner has emphatically submitted that under the Muslim Law the custody of the male child should be with the mother, but in the matter of custody it is the welfare of the child and not the legal right of the parties that would take precedence. In the instant case, having regard to the matrimonial differences between the parties and in view of the fact that the child has been looked after and brought up by respondent No.2 with the assistance of his mother and other family members, the petitioner would have been well advised to approach the competent Court under the Guardian and Wards Act if in fact she desired to have the legal custody of the child.
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18. Therefore, notwithstanding the irregularities and illegalities in the proceedings conducted by the learned Magistrate as discussed above, on consideration of all the facts and circumstances of the case, I am of the view that the direction issued by the learned Magistrate to continue the custody of the child with the father/respondent No.2 is in the interest and welfare of the minor child. The said order sub-serves the ends of justice and therefore, I do not propose to disturb the direction issued by the learned Magistrate in this regard.
19. For the reasons stated above, invocation of the jurisdiction of learned Magistrate by the petitioner in the circumstances of the case is bad in law. The learned Magistrate in exercise of the criminal jurisdiction cannot determine the question of custody of the minor child. The parties are required to approach the competent Courts under the Guardian and Wards Act or the Family Court for resolution of their dispute. Hence, I am of the view that the proceedings initiated by the petitioner under Section 200 Cr.P.C. is an abuse of the process of Court and the : 21 : same impinges on the legal rights of the contesting respondents.
20. Hence, proceedings pending on the file of the learned Magistrate in PCR No.118/2017 are hereby quashed reserving liberty to the parties to take appropriate steps, if necessary, for custody of the child before the competent Court in accordance with law.
The petition is disposed of as indicated above.
Sd/-
JUDGE Rsh/sh