Gujarat High Court
Vishalbhai Pravinchandra Kayastha & 4 vs State Of Gujarat & on 22 April, 2016
Author: R.M.Chhaya
Bench: R.M.Chhaya
R/SCR.A/2/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 2 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE R.M.CHHAYA
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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VISHALBHAI PRAVINCHANDRA KAYASTHA & 4....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Applicant(s) No. 1 5
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MRS REKHA H KAPADIA, ADVOCATE for the Respondent(s) No. 2
MR LB DABHI, APP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 22/04/2016
ORAL JUDGMENT
1. Heard Mr.P.P.Majmudar, learned counsel for the petitioners, Mr.L.B. Dabhi, learned APP for State and Ms. Rekha Kapadia, learned counsel for Page 1 of 13 HC-NIC Page 1 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT respondent no.2.
2. By way of this petition under Article 226 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "Code"), the petitioners have challenged the order dated 22.11.2013 passed by the learned Metropolitan Magistrate, Court No.16, Ahmedabad, upon an application filed by respondent no.2 under section 97 of the Code. By the impugned order dated 22.11.2013, the learned Magistrate has issued notice.
3. The following facts emerge from the record of the petition 3.1 That the petitioner no.1 and respondent no.2 are husband and wife and their marriage came to be solemnized on 21.02.2006. It appears that out of the said wedlock, the petitioner no.1 and respondent no.2 have two children viz., Akshat, born on 08.07.2007 and Agasth, born on 06.07.2010. The record indicates that there is some matrimonial discord between the petitioner no.1 and respondent no.2 and they stay separate from each other. The record also indicates that respondent no.2 has lodged FIR being C.R.No.I243 of 2013 with Karelibaug Police Station, Vadodara for the alleged offence under section 498A of the IPC.
3.2 The record further indicates that the Page 2 of 13 HC-NIC Page 2 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT respondent no.2 herein filed an application under section 97 of the Code before the learned Metropolitan Magistrate, Court No.16, Ahmedabad and prayed for a search warrant under section 97 of the Code for her two children, which came to be registered as Criminal Misc. Application No.130 of 2013, upon which, impugned order dated 22.11.2013 has been passed by the learned Metropolitan. Being aggrieved by the said order, the present petition is filed under Article 226 of the Constitution of India.
4. Mr.P.P. Majmudar, learned counsel appearing for the petitioners has taken this Court through the factual matrix arising in this petition and has raised the following contentions 4.1 That the petitioner no.1 is father and natural guardian of the two children and therefore, the application under section 97 of the Code is not maintainable.
4.2 Relying upon the ratio laid down by this Court in the case of Savitaben Parmar vs. State of Gujarat reported in 2013 (2) GLR 1006, it was contended that the provisions of section 97 of the Code are not attracted and when the petitioner no.1 is the father and natural guardian, it cannot be said that the two children are in wrongful custody of the petitioners and petitioner no.1 in particular and moreover, both the children are with Page 3 of 13 HC-NIC Page 3 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT petitioner no.1.
4.3 It was contended that therefore, the very exercise of the power by the learned Metropolitan Magistrate under section 97 of the Code is without jurisdiction.
On the aforesaid contentions, Mr. Majmudar, learned counsel for the petitioners, contended that the petition deserves to be allowed as prayed for.
5. Per contra, Ms.Kapadia, learned advocate appearing for respondent no.2 has opposed this application and has raised the following contentions 5.1 That the respondent no.2original applicant before the trial court is the mother of the two children and therefore, she is entitled to custody of her children.
5.2 It was contended that the Court of the learned Metropolitan Magistrate has rightly issued notice and as this Court has granted stay, the proceedings of Criminal Misc. Application No.130 of 2013 are stayed.
5.3 It was also contended that the respondent no.2 is also natural guardian and since 2011, the custody of the children is with the petitioners and the respondent no.2 as a mother, has not even seen the face of the two children as Page 4 of 13 HC-NIC Page 4 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT petitioners are not even permitting/allowing respondent no.2 to even meet with her children.
On the aforesaid grounds, therefore, it was asserted by the learned counsel Ms. Kapadia that the petition is misconceived and the same deserves to be dismissed.
6. Mr.L.B. Dabhi, learned APP, by relying upon the judgment of this Court in the case of Savitaben Parmar (supra) submitted that the petitioner no.1 is father of the minor children and therefore, it cannot be considered or treated as illegal confinement and therefore, section 97 of the Code, in the instant case, has no application.
7. No other or further contentions are raised by the learned counsel appearing for the parties.
8. Before reverting to the submissions made by the learned counsel appearing for the parties, it deserves to be noted that in the application which is filed by respondent no.2, allegations are made against all the petitioners. Ms.Kapadia, learned counsel for respondent no.2 while making the aforesaid contentions, as noted hereinabove, has specifically invited the attention of this Court to paras 5 to 7 of the application which was filed by the respondent no.2 under section 97 of the Code on 22.11.2013. On bare perusal of the contentions which are raised in the application and more particularly, paras 5 to 7, Page 5 of 13 HC-NIC Page 5 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT it clearly appears that there is dispute between petitioner no.1 and respondent no.2. On the contrary, the applicant in the said application has mentioned that on 12.11.2013, respondent no.2, i.e., petitioner no.1 had a quarrel with respondent no.2 and applicant has further alleged in the application that two children were taken away by respondent no.5 who happens to be the sisterinlaw of respondent no.2 who stays at Bharuch. The record of the petition on the contrary shows that both the children are studying in schools situated at Vadodara. In addition to that, it is an admitted position that the petitioner no.1 is father of the two children, namely Akshat and Agasth.
9. This Court in the case of Savitaben Parmar (supra), in identical case, has observed thus "10. In this background provisions under Section 97 of the Code is required to be taken into consideration. The said provision reads thus: "97. Search for persons wrongfully confined. If any District Magistrate, Sub divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken Page 6 of 13 HC-NIC Page 6 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
10.1 On plain reading of said section 97 of the Code, it becomes clear that the provision would be attracted and would be applicable in cases where a person is wrongfully confined i.e. where a person is in confinement which is illegal and amounts to an offence.
10.2 Therefore, in cases such as present case where the issue on hand is about custody of minor child, the question which would arise is whether custody of a minor child with his father can be considered as confinement and whether such confinement can be considered wrongful confinement which amounts to a offence.
10.3 According to section 6 of the Hindu Minority and Guardianship Act, 1956, father is natural as well as legal guardian of minor child. Therefore, when custody of minor child is with his father it cannot be considered or treated as illegal confinement or wrongful custody and will not attract provisions under Section 97 of the code.
11. Even for the cases where the issue (i.e. the allegation with reference to custody) is not with reference to custody of minor child, said section 97 of the code postulates that the order to issue search warrant can be passed only upon proper application of judicial mind and in case where a person is in custody and such custody is wrongful amounting to illegal confinement.
11.1 Even on plain reading of the said provisions, it emerges that so as to invoke the provisions under Section 97 of the Code, the applicant must show that the person is in wrongful custody and learned Magistrate Page 7 of 13 HC-NIC Page 7 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT must have reason to believe that a person is confined under such circumstances that the confinement amounts to an offence.
11.2 Thus, for taking recourse under Section 97 of the Code and for exercising power under the said provision and for issuing search warrant the twin requirements viz.
(a) the person in connection with whom request for search warrant is made, should be shown to be in wrongful and illegal confinement and (b) prima facie satisfaction of the learned Magistrate that the concerned person is in wrongful confinement, are sine quanon.
11.3 This aspect becomes clear from the phrase reason to believe used in Section 97, which postulates that upon application of mind to the facts of the case and the material available on record, the learned Magistrate must be judicially satisfied that the facts of the case and the material on record demonstrate that the person in custody is in confinement amounting to offence which justifies and calls for order issuing search warrant.
11.4 There should be reasonable ground for such belief. The phrase reason to believe enjoins duty on the learned Magistrate, hence, before passing such order the learned Magistrate should carefully arrive at the belief and satisfaction must be reached upon examination of all relevant facts and the material on record and the learned Magistrate should record the findings as well as his reasons for the conclusion that the custody is, or appears to be, unlawful and amounts to confinement which is illegal.
12.Section 6 of The Hindu Minority and Guardianship Act, 1956 prescribes that in case of a boy (and unmarried girl) father is natural guardian (for minor's person and property) and after him mother would be Page 8 of 13 HC-NIC Page 8 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT natural guardian of minor boy. Thus, father is a natural and legal guardian of a minor son.
12.1 If a minor boy is in custody of his father, who is considered to be natural and legal guardian of minor boy, then he cannot be presumed or considered to be in illegal confinement.
12.2 The said provision also prescribe that custody of minor who has not completed age of five years shall ordinarily be with the mother.
12.3 However, for the purpose of Section 97 of the Code, the custody of minor boy who has not completed five years of age cannot be mechanically and automatically treated as confinement amounting to offence and merely on the premise that age of the minor boy is less than five years, an application under Section 97 of the Code cannot be mechanically and automatically allowed and search warrant, in exercise of power under Section 97 of the Code cannot be issued if such minor boy is with the father.
12.4 In such cases learned Magistrate should have reason to believe that the child is confined and that confinement amounting to an offence.
12.5 The provision under the Hindu Minority and Guardianship Act, more particularly under Section 6 of the said Act provides that until age of five years custody of minor child should, ordinarily, be with mother.
12.6 However, there could be myriad circumstances or reasons in light of which the Court may find that mother would not be fit or proper guardian with whom custody of the minor child, even below 5 years, may be allowed.
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R/SCR.A/2/2014 JUDGMENT
12.7 The learned Magistrate must, therefore, very cautiously and after carefully examining relevant facts and material on record reach to the belief as to confinement and it would not be proper for learned Magistrate to automatically and mechanically pass order under Section 97 of the Code and issue search warrant on the application made by the mother."
10. Considering the ratio laid down by this Court as well as considering the ratio laid down by the Apex Court in the case of Ruchi Majoo vs. Sanjeev Majoo (2011 [6] SCC 479) as well as the judgment of the Apex Court in the case of Ramesh vs. Laxmi Bai (Smt) [1998 (9) SCC 266] reported at 1998(9) SCC 266, this Court has in Savitaben Parmar (supra), further observed thus "16. Thus, in an application preferred under Section 97 of the Code seeking search warrant against father of a minor son, learned Magistrate would not be justified in overlooking that a father is natural as well as legal guardian of minor boy and that therefore when a minor son is with his father such custody cannot be said to be confinement, much less illegal confinement or confinement amounting to offence and learned Magistrate would not be justified in mechanically invoking provisions under Section 97 of the Code and issuing search warrant against father with whom minor boy is staying.
16.1 In this context useful reference can be made to the observations by the Hon'ble Apex Court in paragraph No.4 of the decision in case between Ramesh vs. Laxmi Bai (Smt) [1998 (9) SCC 266] wherein Hon'ble Apex Court observed that: Page 10 of 13 HC-NIC Page 10 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT
4. 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 the petition seeking search warrants under Section 97 CrPC in the established facts of the case is untenable. Section 97 CrPC 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 17.7.1996 and that of the learned Additional Sessions Judge dated 9.7.1996 cannot be sustained and we accordingly set aside the orders and the directions given therein.
16.2 At this stage reference may also be made to the decision by the Hon'ble Apex Court in case between Anjali Anil Rangari vs. Anil Kripasagar Rangari [1997 (10) SCC 342] wherein converse fact situation was before Hon'ble Apex Court. In the said case the application under Section 97 of the code was moved by the father of minor children before learned Magistrate on the allegation that the mother left matrimonial home along with two children without informing. On such premise father alleged that children were in illegal custody and were in wrongful confinement of the mother. While considering the said case Hon'ble Apex Court, in para 3, observed that:
3. The only question that needs to be considered in the context of the facts and circumstances of the present case is as to whether provisions of Section 97 CrPC could be involved. It cannot be disputed that the mother is also a Page 11 of 13 HC-NIC Page 11 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT natural guardian under Section 6 of the Hindu Minority and Guardianship Act, 1956. If it is so, could it be said that the custody of the two minor children with the mother was illegal and they were under her wrongful confinement? In the facts and circumstances of the case, we are unable to hold that the custody of the children with the mother was either unlawful or they were wrongfully confined by the mother at Delhi. If this be so the very basis of the impugned order cannot be sustained and consequently the impugned order is required to be set aside. We accordingly do so.
16.3 Thus, when custody of minor child is with natural guardian, provision under Section 97 of the Code would not be attracted and cannot be invoked.
16.4 In case of custody of minor the power under Section 97 of the Code should be exercised cautiously and with more care and circumspection. Though provision under Guardian and Wards Act are not a substitute for proceedings and order under Section 97 of the Code, they, nonetheless, are good reason for not readily, casually and easily invoking said provision and issuing search warrant in cases where the issue on hand is related to minor child and the child is with one of the parents."
11. Applying the ratio of the aforesaid judgments in the present case, it clearly appears that the petitioner no.1 is the father of the two children and therefore, it cannot be said that the two children are in illegal confinement or wrongful custody or the present petitioners who are original opponents. This Court on the basis of Page 12 of 13 HC-NIC Page 12 of 13 Created On Wed Apr 27 00:52:39 IST 2016 R/SCR.A/2/2014 JUDGMENT the record which is produced, is satisfied that the children are in school at Vadodara where the petitioner no.1 resides and petitioner no.1, being father, cannot be said to be in wrongful custody of the two children except bare allegation. The respondent no.2 has not been able to establish prima facie that the two children are not in custody of petitioner no.1, their father. Even in the application before the learned Metropolitan Magistrate, except bare words that the children have been taken away by petitioner no.5 herein, the sisterinlaw of the respondent no.2, nothing is on record to show that the two minor children are in custody of petitioner no.5 herein. The contention raised by the respondent no.2 even before this Court are meritless. Section 97 of the Code is not a remedy for meeting children as contended by the learned counsel for the respondent no.2. In light of the facts and aforesaid discussions therefore, the very exercise of the power under section 97 of the Code is without jurisdiction.
12. Resultantly, petition is allowed. Order dated 22.11.2013 passed by the learned Metropolitan Magistrate, Court No.16, Ahmedabad is quashed. Rule is made absolute accordingly.
(R.M.CHHAYA, J.) bjoy Page 13 of 13 HC-NIC Page 13 of 13 Created On Wed Apr 27 00:52:39 IST 2016