Kakkanattu Balagopalan Nair Deepu (Aka ... vs State Of Kerala on 14 June, 2016

[Cites 11, Cited by 1]

Kerala High Court

Kakkanattu Balagopalan Nair Deepu (Aka ... vs State Of Kerala on 14 June, 2016

1.Irreconcilable marital discord between the spouses have ultimately led to the registration of Crime No.509 of 2016 of the Ernakulam Town South Police Station at the instance of the wife. The accused in the aforesaid crime is none other than the husband and he is alleged to have committed offence punishable under section 342 of the IPC. The persons who are alleged to have been wrongfully confined are the minor children of the petitioner and the 2nd respondent.

2.Contending that the registration of the crime against him is a clear abuse of process of Court, the petitioner has filed this petition under section 482 of the Code. Crl.M.C. No.5848 of 2016 -2-

3.The facts indispensable for the consideration and disposal of the instant petition, as is discernible from Annexure-6 complaint filed by the 2nd respondent before the learned Magistrate, are that the petitioner married the 2nd respondent in the year 1999 and two children were born in the wedlock. After stint in various countries abroad, the parties finally settled in Muscat. The relationship between the spouses became strained in course of time. The 2nd respondent alleges that she was mentally and physically harassed. While so on 2.07.2014 , the petitioner along with the 2nd respondent and the minor children returned to India and started living at Ernakulam. The petitioner thereafter went back to Muscat. The children were admitted in the Gregorian Public School at Maradu and they were pursuing their education there.

4.While so, the petitioner came down to Ernakulam and stating that the children need to be taken to his father Crl.M.C. No.5848 of 2016 -3- who was lying in his death bed took them away on 28.3.2016. On 31.3.2016, the father of the petitioner expired and hearing the news, the 2nd respondent went to pay her last respects. On 1.4.2016, the 2nd respondent was persuaded to return back home. However, the children were not permitted to go with her. Though the 2nd respondent requested the petitioner to give her custody of the children, her request went unheeded. Though she went to the home of the petitioner to get back the children, she had to return empty handed. Stating that there was every chance for the children being secretively taken abroad, Annexure-6 complaint was filed seeking for the issuance of a search warrant to locate the confined children and to produce them before the learned Magistrate. It appears that the said complaint was forwarded by the learned Magistrate to the Police under section 156 (3) of the Code, based on which the aforesaid Crime was registered.

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5.Sri Santhosh Mathew, the learned counsel appearing for the petitioner, submitted that the allegations made in the First Information Report and the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case under Section 342 of the IPC against the accused. The learned Counsel would submit that as early as on 11.4.2016, by Annexure-1 complaint, the elder child had submitted a complaint before the Circle Inspector of Police, Ernakulam levelling certain allegations against the 2nd respondent and had expressed her desire to be with the petitioner. Reference is also made to Annexure-11 order of this Court in W.P.(C) No. 27468 of 2016 preferred by the petitioner and the minor children seeking issuance of Transfer Certificate from the Gregorian Public School to enable the children to pursue their education abroad. According to the learned Counsel, this Court had passed orders directing the school authorities to issue transfer Crl.M.C. No.5848 of 2016 -5- certificate. The Counsel further urged that O.P. (G & W) No.758 of 2016 has been filed by the 2nd respondent before the Family Court, Ernakulam seeking custody of the minor children, which is pending. According to the learned Counsel, it is trite that in order to attract the offence under section 342 of the IPC, the detention must be against the will of the person and must be involuntary and the custody of children by the father, who is the natural guardian cannot be wrongful confinement.

6.Sri. John Joseph, the learned counsel appearing for the 2nd respondent, would counter the submissions and would contend that the children are in forcible custody of the petitioner and is under threat. According to the learned counsel, the petition under the Guardian and Wards Act, 1890 was pending before the Family Court and in that view of the matter, prior consent ought to have been obtained from the Court .

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7.The learned Public Prosecutor would submit that the allegations were found to be false and that the police have filed a report before Court stating that the children are not under the illegal confinement of the father.

8.This submission by the learned Public Prosecutor could have been accepted and the matter could have been closed. However, certain aspects needs to be addressed.

9.A perusal of Annexure-6 complaint filed on 16.4.2016 would reveal that the prayer was under section 97 of the Code of Criminal Procedure requesting the Station House officer of the Gandhi Nagar Police Station to conduct a search of the residential home of the petitioner and to find the children who are alleged to have been wrongfully confined there. The learned Magistrate has nonchalantly forwarded the complaint to the Police under section 156 (3) of the Code and have directed the registration of the Crime .

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10.The allegation against the petitioner is that he had wrongfully confined his minor children. Wrongful confinement as has been defined in Section 340 of the IPC is a species of wrongful restraint as defined in Section 339 IPC. While, in wrongful restraint, there is only a partial suspension of ones liberty, wrongful confinement reflects total suspension of liberty beyond certain prescribed limits. The period of suspension is immaterial for constituting an offence of wrongful confinement or wrongful restraint. When a person is restrained and is prevented from going, where he has a right to go, the restraint becomes wrongful, if such restraint is not in exercise of any right, power or authority under any law.

11.In this background, the provisions under Section 97 of the Code is required to be taken into consideration. The said provision reads thus:-

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Section 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 before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

12.It is pellucid from a plain reading of section 97 of the Code that the provision would come in operation only in cases where a person is wrongfully confined i.e. where a person is in confinement which is illegal and amounts to an offence. Thus, for taking recourse under Section 97 of the Code and for exercising powers under the said provision and for issuing search warrant twin requirements are to be fulfilled, viz. (a) the person in Crl.M.C. No.5848 of 2016 -9- 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. The existence of these two conditions are a sina qua non prior to passing of an order in a petition filed under section 97 of the Code. The phrase "reason to believe" used in Section 97 mandates that the learned Magistrate should be judicially satisfied after due application of mind on the material available on record, that certain person in custody is in wrongful confinement amounting to an offence which justifies the issuance of urgent orders. In a case of instant nature, where the allegation is against the father, the Court below ought to have applied its mind to ascertain whether the custody of the child with their father was confinement and whether such confinement can be considered wrongful confinement which amounts to a offence.

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13.This is because under section 6 of the Hindu Minority and Guardianship Act, 1956, father is natural as well as legal guardian of a minor offspring. If the children are in the custody of their father, who is considered to be natural and legal guardian of minor children, then they cannot be presumed or considered to be in illegal confinement. Though section 6 also provides that the custody of minor who has not completed age of five years shall ordinarily be with the mother, that may not be a sufficient enough reason to conclude that the child is in wrongful confinement. Therefore, when custody of minor children are with their father, unless there was material to show that the custody was illegal or in violation to some order passed by the court, it cannot be considered or treated as illegal confinement or wrongful custody so as to warrant issuance of direction under Section 97 of the Code. The learned Magistrate was expected to carefully arrive at the belief and satisfaction after examining all relevant facts Crl.M.C. No.5848 of 2016 -11- and the material on record and should have recorded 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. It would not be proper for the learned Magistrate to automatically and mechanically pass orders under Section 97 of the Code and issue search warrant on the application made by one of the parents.

14.It would also be apposite to refer to a decision of the Apex Court in the case of Anjali Anil Rangari vs. Anil Kripasagar Rangari [1997 (10) SCC 342] wherein converse fact situation had arisen before the 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 Crl.M.C. No.5848 of 2016 -12- confinement of the mother. While considering the said case Hon'ble Apex Court, in paragraph 3, observed that:-

"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 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."

15.There is yet another aspect. It appears that the Court below did not take note of the directions issued by the Crl.M.C. No.5848 of 2016 -13- Apex Court in Priyanka Srivastava and Another V State of U.P. And Others (AIR 2015 SC 1758) wherein the Apex Court had cautioned the Magistrates to remain more vigilant and diligent while exercising power under S.156(3) Cr.P.C. In paragraph 27 of the Judgment it was observed as follows : -

"27. In our considered opinion, a stage has come in this country where S.156(3) CrPC applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be Crl.M.C. No.5848 of 2016 -14- challenged under the framework of said Act or under Art.226 of the Constitution of India.

But it cannot be done to take undue advantage in a Criminal Court as if somebody is determined to settle the scores. We have already indicated that there has to be prior applications under S.154(1) and S.154(3) while filing a petition under S.156 (3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under S.156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under S.156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute / family disputes, commercial offences, medical Crl.M.C. No.5848 of 2016 -15- negligence cases, corruption cases and the cases where there is abnormal delay / laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed.

That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

It does not appear that the learned Magistrate had followed the directives issued by the Apex Court in the above decision.

Having regard to the above, I hold that the registration of the FIR in Crime No.509 of 2016 on the basis of the Annexure-6 complaint is clearly an abuse of process of Court. The same is quashed.

sd/-

RAJA VIJAYARAGHAVAN.V., JUDGE ps/6/2/17

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