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Madhya Pradesh High Court

Samar Singh Parmar vs Smt. Manju Parmar on 10 October, 2017

                             1                  MCrC 10676/2016

                  M.Cr.C. No. 10676/2016
10.10.2017
           Shri Surendra Singh, learned Senior Advocate
with Shri Kapil Jain, Advocate for the petitioner.
           Shri Amit Verma, learned counsel for respondent
No.1.
           Shri   Saurabh        Shrivastava,    learned   Govt.
Advocate for the State.
                       ORDER

The petitioner through this petition u/s. 482 of the Criminal Procedure Code, 1973 (hereinafter, for short, 'the Code') seeks to invoke inherent jurisdiction of this Court against order dated 10.3.2016 passed by learned 11th Additional Sessions Judge, Bhopal in Cr. Revision No.624/2015 arising out of order dated 30.10.2015 passed in Case No.4/2015 by Sub-Divisional Magistrate (SDM), Bhopal u/s. 97 of 'the Code' .

2. The preliminary question that has been raised in this petition is whether a child in the custody of his father can be said to be in wrongful confinement so as to attract applicability of Section 97 of 'the Code' which authorises a SDM or Magistrate of the First Class to issue a search warrant subject to a reasonable belief that any person is 2 MCrC 10676/2016 confined under such circumstances that the confinement amounts to an offence.

3. Necessary facts relevant for disposal of this petition, briefly stated, are as under :

(i) Respondent No.1 - Smt. Manju Parmar was married on 12.12.2002 to petitioner - Samarsingh Parmar who is employed as a Class-I officer in the State Government. From this wedlock, they have a male child named Divyaraj Parmar who was born on 15.7.2006 and is presently in the custody of respondent No.1 pursuant to the order passed by learned SDM, Bhopal on 30.10.2015, in exercise of powers u/s. 97 of 'the Code'.

4. It is revealed that the petitioner and the respondent are having strained relations. The petitioner resides at Indore. Due to matrimonial dispute, discord and differences, the respondent No.1 started residing at Bhopal with her parents. The son continued in the custody of the petitioner and was pursuing his studies in Class 4th at Choithram School, Indore.

5. The respondent No.1 moved an application before the SDM, T.T. Nagar, Bhopal demanding the custody of the child with the allegation that he is being forcibly and wrongfully detained by the petitioner. The learned SDM on 3 MCrC 10676/2016 the basis of this petition vide order dated 30.10.2015 directed for issuance of search warrant for procuring custody of the child, pursuant to which, he was taken into custody by the police and produced before the SDM and handed over to the respondent No.1 with the observation that at the time of execution of search warrant, the petitioner has fired from a gun and has obstructed the execution of the search warrant, which indicates that the child is not safe in the custody of the petitioner.

6. The order passed by the learned SDM was challenged by the petitioner by way of Cr. Revision before the Sessions Court. Learned 11th Additional Sessions Judge, Bhopal vide the impugned order though quashed the order passed by the learned SDM, however, the child was allowed to be remained in the custody of respondent No.1 holding that repeated transfer of custody of the child will not be in the interest of the child.

7. The impugned order is challenged on the ground that from certificates (Annexure P/3) and photographs (Annexure P/4) annexed with the petition, it is more than clear that the child was doing fine in his school and was happy with his father and grand parents and that he was being provided best of the education and values in a healthy 4 MCrC 10676/2016 environment which ensured happiness and growth. Allegedly, on 28.10.2015, while the petitioner along with his parents and the child was travelling in a car, 4-5 anti- social elements started breaking of glass of the car near Tower Chouraha traffic signal and forcibly took the child from the custody of the petitioner. At the time of this incident, respondent No.1 was also present and that the child was virtually snatched away from the custody and during this incident, one of the persons, spread chilly powder on the petitioner's face. Two persons in police uniform were also present at that time. It is submitted that as the petitioner and his parents were attacked by the anti- social elements, therefore, the petitioner has to fire 2-3 shots in the air from his licenced revolver in self defence.

8. Placing reliance on the decision of the apex Court in Ramesh vs. Laxmibai (Smt.), (1998) 9 SCC 266 and a decision of this Court in Pushpa Ramesh Kumar Patwa vs. Ramesh Kumar Badri Prasad, Cr. Revision No.295/1997 decided on 29.6.1998 at Principal Seat, Jabalpur, it is submitted by the learned senior counsel for the petitioner that the custody of the child with his father can by no stretch of imagination or logic of law can be considered as wrongful confinement so as to attract 5 MCrC 10676/2016 provisions of Section 97 of 'the Code', therefore, the learned SDM committed a serious error in issuing search warrant in exercise of powers u/s. 97 of 'the Code' and handing over the custody of the child to respondent No.1. It is further submitted that though the learned revisional Court has rightly quashed the order passed by the learned SDM, however, a serious error has been committed in not restoring the custody of the child to the petitioner which amounts to perpetuating an illegality committed by the learned SDM.

9. Per contra, it is submitted by the learned counsel for the respondent No.1 that the learned SDM so also the learned revisional Court, in the facts and circumstances of the case, have rightly held that the respondent No.1 is entitled to have the custody of the child and that looking to the best interest of the child, his custody with the mother is not required to be disturbed.

10. Heard the learned counsel for the parties and perused the record.

11. As far as applicability of Section 97 of 'the Code' is concerned, the apex Court in Ramesh vs Laxmi (supra) has clearly held that the custody of a child with father cannot be said to be wrongful confinement, therefore, 6 MCrC 10676/2016 Section 97 of 'the Code', prima facie, is not attracted in such case. Relevant observations made by the apex Court in Ramesh Vs. Lakshmi (supra) are as under :-

"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 a 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."

(emphasis supplied)

12. In Pushpa RameshKumar Patwa vs. Ramesh Kumar (supra), relying on the aforesaid authority of the apex Court, this Court has held as under :-

"4. In view of the law laid down in the aforesaid decisions, I am of the considered view that in exercise of power under Section 97 of the Code, 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 provision of section 97 of the Code. Any of the parents can take recourse to the provisions under the Hindu Minority and Guardianship Act, 1956 for appointment of a guardian of the child but it is not open to any one of them to take recourse to section 97 of the Code."

13. From the aforesaid enunciation of law, it is abundantly clear that as regards Section 97 of 'the Code', the custody of the minor child with his father cannot be treated as wrongful confinement or confinement under such circumstances that the confinement amounts to an offence. Therefore, in such a situation, Section 97 of 'the Code' cannot be pressed into service and a search warrant cannot be issued for procuring custody of a child who is in the custody of his father.

14 In the instant case, the learned SDM without adverting to the aforesaid factual and legal aspects of the matter had issued the search warrant with respect to the minor child who was in the custody of petitioner - father. The order passed by the learned Magistrate clearly was contrary to the provisions of law as well as the legal mandate enunciated by the apex Court.

15. Though the learned revisional Court has set aside the order passed by the learned SDM, however, the effect of the order, meaning thereby the custody of the child with the mother, was allowed to subsist on the ground that changing the custody of the child may not be in the best interest of the child. The documents filed as Annexure P/3 and P/4 along with the petition eloquently speak that the child was very much comfortable with the petitioner and was pursuing his studies in Class 4 at Choithram School, Indore, which demonstrates that the child was being provided proper education in a healthy and congenial environment ensuring his growth and well being. Therefore, the reason assigned by the learned revisional Court for not restoring the custody of the child with the father cannot be appreciated particularly looking to the fact that the custody 9 MCrC 10676/2016 of the child was procured by the mother under the illegal orders of the learned SDM.

16. In view of the aforesaid, this petition deserves to be and is hereby allowed. The order passed by the learned revisional Court is hereby set aside and it is directed that the custody of the child shall be restored to the petitioner - father within a period of 30 days from today. However, the parties are at liberty to pursue the proceedings under the personal law with regard to custody of the child. It is made clear that the observations made here will not in any manner affect the outcome of the case with regard to custody of the child to be decided in such proceedings.

( VED PRAKASH SHARMA ) JUDGE Alok/-