Criminal Revision No.156 of 1999

6th August, 2003

Petitioner Counsel: Mr. J. T. GILDA, M.R.JOSHI, Mr. KHANDEKAR
Respondent Counsel: Smt. SMITA DESHPANDE

Cases Cited:
Himmat s/o Kashinath Patil Vs. Mangala d/o Shyamrao Patil, 1992(2) Bom C.R. 194 [Para 10,13]
Duryodhan Mahanta Vs. Saraswati Mahanta, 1992 Cri.L.J. 2231 [Para 10,17]
Ashok Thadani Vs. Ramesh K. Advani, 1982 Cri.L.J. 1446 [Para 10,21]
Sk. Razak Vs. Riyasathbi, 1975 Cri.L.J. 1131 [Para 10,20]
Banarsi Lal Vs. Smt. Neelam, 1969 AIR Delhi 304 [Para 10,19]
K. Pareekutty Vs. Ayyikkal Ayissakutty, 1978 Cri.L.J. NOC 98 (KER) [Para 11,15]
K. Sarasu Vs. Sengodam, 1981 Cri.L.J. NOC 113 (MAD) [Para 14]
Mrs. Elizabeth Vs. Arvand, AIR 1987 SC 3 [Para 18]

JUDGMENT

JUDGMENT :- This criminal revision application is preferred by the applicants herein challenging the order passed by the Additional Sessions Judge, Achalpur on 16-9-1999 in Criminal Revision No.6/1999, allowing the revision application filed by the non applicant herein and, directing the applicant no.1 to produce the applicants no.2 to 4 before the Judicial Magistrate, First Class, Daryapur, for handing over the custody of the children to the non applicant.

2. Material facts of the case may be stated in brief as follows - The non applicant Sau. Usha Pachare is legally wedded wife of the applicant no.1 - Marotrao Pachare and their marriage was performed about 9 years back. As usual, after marriage they lived together and cohabited and three children namely applicants no.2 to 4, were born to the non applicant out of this wedlock.

3. The non applicant filed an application under section 97 of the Criminal Procedure Code on 4-1-1999 in the court of Judicial Magistrate, First Class, Daryapur requesting for issuing of production warrant for producing the children (applicants no.2 to 4) before the Court and for handing over them to her custody. In her application she has alleged that the applicant no.1 has driven her out of the house and he has snatched away the custody of applicants no.2 to 4 from her.

4. The applicant no.1 resisted the claim of the non applicant contending that the non applicant for the reasons best known to her left her matrimonial home leaving the children in the custody of the applicant no.1 about three months earlier to the presentation of the application in the Court of Judicial Magistrate First Class, Daryapur.

5. The learned Magistrate taking into consideration the factual position, as also the legal position as to the custody of minor children reached to the conclusion that the non applicant wife has failed to make out a case of wrongful confinement of the children or any danger to their life.

6. Learned Magistrate has also taken into consideration admitted fact that the children are living with the applicant no.1 for more than 3 months as per the statement of the non applicant. The Court also found that there was no material on record to show that the applicant no.1 has wrongfully confined the children. He also found that the applicant - wife has failed to substantiate her allegations in the application that she was driven out from the house and the children were taken away from her custody. The learned Magistrate, therefore, was of the view that merely to get the custody of the children recourse to the provision under section 97 of the Criminal Procedure Code for issuance of production warrant is not at all warranted. The wife also being natural guardian of the children was entitled to get custody of the children and for that she has independent remedy in Civil Court. In keeping with these conclusions, the learned Magistrate rejected the application.

7. The non applicant taking exception to the order passed by the Magistrate rejecting her application, preferred Criminal Revision Application No.6/1999 before the Additional Sessions Judge, Achalpur. The Additional Sessions Judge while allowing the revision application and setting aside the order passed by the Magistrate observed "After completion of the age of five years the father may claim custody of the same, but till the time of that age, the mother is entitled to the custody of the children and refusing the custody of the same or keeping the children with him is denying right of mother and hence it is a wrongful Act." He also observed, - "In particular circumstances of this case, considering the very small age of the children keeping away from the approach of the mother, who is entitled to their custody, would amount to wrongful confinement, therefore, she is entitled to the search warrant as prayed for under section 97 of the Cr.P.C."

8. That is how, the matter has come to this court. This court on 25-10-1999 while issuing notice to non applicant passed orders of interim stay in terms of prayer clause (ii) of the revision application, thereby the order passed by the learned Additional Sessions Judge, Achalpur in revision came to be stayed and the consequence of that is the children still remained in the custody of the applicant no.1. This situation is relevant to consider the claim of the applicants before us in light of the fact that the children have now grown up and particularly applicant no.4 namely Pooja who was admittedly a sucking child when the non applicant moved the trial court for production warrant, is now 5 1/2 years old. It has to be mentioned that the non applicant while seeking custody of the children taking recourse to provision under section 97 of Cr.P.C. before the Magistrate gave emphasis on the fact that the applicant no.4 was then sucking child. It appears that the learned Sessions Judge was swayed away by the fact that the applicant no.4 was then a sucking child and that is why he passed the order directing the applicant no.1 to produce the children.

9. Mr. Gilda, learned counsel for the applicants submitted that the learned Additional Sessions Judge has committed patent illegality in holding that as the non applicant is entitled to the custody of minors, at least after the completion of five years, she is entitled to custody and since the custody was denied to her, she is entitled to file application seeking production warrant under section 97 of Cr.P.C. Learned Additional Sessions Judge without considering the aspect that there is a remedy provided under the Hindu Minority and Guardianship Act for handing over the custody of children, straightway ordered that since the non applicant is entitled to custody, keeping custody of children with the father is a wrongful act, amounts to wrongful confinement. This observation of the learned Additional Sessions Judge has absolutely no basis in law. He submitted that section 97 of Cr.P.C. conferred power to issue search warrant for production of a person who is wrongfully confined. In the case before hand the non applicant has not made out a case that the children were wrongfully confined and therefore, the learned Additional Sessions Judge ought not to have directed to hand over the custody of the children and as such the learned Additional Sessions Judge has exceeded the limits of his jurisdiction vested in him in passing the impugned order. It is submitted that the mother who is entitled to the custody of the children, has to file an application as per the provisions of Hindu Minority and Guardianship Act, 1956 for obtaining the custody of the children. It is submitted that there was no perversity pointed out in the well reasoned order passed by the learned Judicial Magistrate, First Class and the view taken by the learned Judicial Magistrate, First Class being perfectly legal, the learned Additional Sessions Judge has committed serious error in law, as well as in exercise of jurisdiction by setting aside the well reasoned order passed by the Judicial Magistrate First Class.

10. Learned Counsel placed reliance on decisions reported in 1992(2) Bombay Case Reporter Page 194 (Himmat s/o Kashinath Patil Vs. Mangala d/o Shyamrao Patil and another) 1992 Cri.L.J Page 2231 (Duryodhan Mahanta Petitioner Vs. Saraswati Mahanta - Opposite Party), 1982 Cri.L.J. Page 1446 (Ashok Thadani - Petitioner Vs. Ramesh K. Advani & others - Respondents), 1975 Cri.L.J.1131 (Sk. Razak - Applicant Vs. Riyasathbi and others Opponent), 1969 AIR Delhi, 304 (Banarsi Lal Petitioner Vs. Smt. Neelam and others - Respondent).

11. Mrs. Deshpande, learned counsel appearing for the non applicant placing reliance on decision in 1978 Cri.L.J. NOC 98 (KER) (K. Pareekutty and another Petitioner Vs. Ayyikkal Ayissakutty and another Respondents) submitted that the learned Additional Sessions Judge was right in granting custody of the children to the non applicant wherein on facts it was found that the children were removed by the applicant no.1 from her custody and that removal of the children from the custody of the lawful guardian is wrongful act amounts to wrongful confinement.

12. I have given thoughtful consideration to the submissions made by the learned counsel for the parties in the light of the various decisions relied upon by them. The controversy in the matter veers around the scope and jurisdiction of the Magistrate in exercise of powers envisaged under section 97 of Cr. P.C. 1973. It is therefore, appropriate to reproduce section 97 of the Criminal Procedure Code. Section 97 is reproduced below for ready reference :

"Section 97 - 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 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."

13. The action under section 97 is to meet emergency. A reasonable belief by the Magistrate that the confinement of the person concerned amounts to an offence is sinequanon for the exercise of the jurisdiction under this section. Therefore, as observed by this Court in 1992(2) Bombay Case Reporter 194 (Himmat Kashinath Patil - Petitioner Vs. Mangala d/o Shamrao Patil and another - Respondents), unless there is material before the Magistrate and the Magistrate believes that the confinement of the person concerned is an offence, the jurisdiction under section 97 could not be exercised at all. Section 97 does not authorise the Magistrate to go into the disputed questions as to which of the claimants is entitled to custody of a minor. Such question will always have to be left to the Civil Courts empowered under the different statutes. It would be also beyond the scope of jurisdiction of the Magistrate to assess the comparative merits and demerits of the claim of a father and mother or other person claiming the custody and to find out in whose custody the well being of the minor is protected.

14. Some what similar question fell for consideration before the Madras High Court in case of K. Sarasu Vs. Sengodam - 1981 Cri.L.J. NOC 113 (MAD). In that case father took away his own child below five years of age from keeping of its mother. The mother filed application for custody of the child from its father under section 97 of Criminal Procedure Code on the ground that she has got permanent right of guardianship in preference to that of the father. Her application was rejected by the Court. It was held that father was natural guardian and hence he has not committed any offence in taking away his own child and therefore, question of exercise of jurisdiction under section 97 did not arise. The Court also observed "The question whether welfare of child demands, their custody to be with mother or with father, is a matter to be decided by a Civil Court, that can not be gone into in a proceeding under section 97 of Cr.P.C."

15. It is true that in the case of K. Pereekutty and another - petitioner Vs. Ayyikkal Ayissakutty and another 1978 Cri.l.J. (NOC) 98 (KER) relied upon by the counsel for the non applicant, it has been held that in case minor child aged about 4 years is removed from the custody of a mother, issuance of warrant search under section 97 was right in exercise of jurisdiction by the Magistrate as envisaged under section 97 of Cr.P.C. But factual position in that case was that Muslim Mother was in law entitled to the custody of her child, it being aged about only 4 years and as was evidenced by the fact of award of maintenance in respect of the child after she was divorced the child was in her custody, search warrant could be issued at her instance when the child was removed from her custody by the father of the child by using physical force. In such a case, the Magistrate issuing the warrant could be said to have reason to believe that the confinement by the father amounted to wrongful confinement. This decision reinforces a requirement of issuance of search warrant under section 97 of Cr.P.C. for wrongful confinement on the part of one of the parents of the child in forcibly removing the child from the lawful custody of the guardian without there being any regard for the welfare of the child. Therefore, it is crystal clear that removal of a child from the lawful custody of a guardian must amount to an offence of wrongful confinement so as to attract provisions of section 97 of Cr.P.C. for issuance of production warrant to produce the child before the Court. It is needless to say that wishes of the child for removing from the custody of the lawful guardian is absolutely irrelevant consideration. At the same time welfare of the child for getting custody of the child taking recourse of section 97 of Cr.P.C. is not a factor relevant for consideration. However, that is a factor very much relevant in proceeding before the Civil Court for custody of child under the provisions of the Hindu Minority and Guardianship Act.

16. It is revolting to model sense of justice and fair play that a person who has lawful custody of the minor should be deprived of such custody by crude means which has no sanction under law. Removal of the child by using physical force from the custody of the mother is prima facie a wrongful act. Keeping the child beyond the reach of the person who is entitled to its custody would amount to wrongful confinement. Therefore, if one of the guardians of the child by using physical force removes the child from the custody of other guardian who is entitled to the custody and also does not allow the guardian who is deprived to get access to the child so also the custody of the child, that amounts certainly wrongful confinement of the child and therefore, it is in that situation the jurisdiction of the Magistrate is invoked under section 97 of Cr.P.C.

17. The decision in case of Duryodhan Mahanta Petitioner Vs. Saraswati Mahanta Opposite Party 1992 Cri.L.J. 2231 - relied upon by the upon by the counsel for the applicants directly deals with the issue involved in the present case. In that case the propriety of the order passed under section 97 of Cr.P.C., 1973 was the subject matter of the adjudication. In that case search warrant under section 97 came to be issued at the instance of mother for custody of the child under 5 years and secondly the child was recovered from the custody of father. It was found ultimately by the High Court while considering the revision application, arising out of the order passed by the Magistrate, that though such direction of producing the child and giving it in the custody of the mother till he attains majority was not contemplated in terms of section 97. However, it was found that it would be inequitable to interfere with the order and the remedy of the petitioner was to move the Civil Court in appropriate proceedings. Regarding the provisions contained in section 97 of Cr.P.C. it was observed by the Court that Magistrate is authorised to issue a search warrant if he has reason to believe or on the truth of the allegations about the wrongful confinement of a person, the Magistrate can not issue search warrant unless confinement amounts to an offence. Section 97 of the Code corresponds to section 100 of the Old Code of 1898. This section contemplates only wrongful confinement as defined in sections 339 and 340 of I.P.C. Use of expression "reason to believe" makes the legislative intention very clear that unless the Magistrate has reason to believe that the person is confined in such circumstance that confinement itself amounts to an offence, issue of a search warrant under this section is without jurisdiction. The expression "reason to believe" implies belief arrived at judicially after application of judicial mind on consideration of available material with sense of responsibility and that of mind without ignoring as far as possible the other side of the controversy. When child is in the custody of either father or mother it becomes rather difficult to immediately come to a decision that confinement is illegal. A Magistrate taking action has to satisfy himself that there exist materials to induce his belief that the person is confined in such circumstances as to make the confinement amount to an offence. This is the requisite precondition before action can be taken. The allegations need not be absolute in precision. In the absence of material which prima facie shows that confinement amounts to an offence, action under section 97 would be improper. When a father takes his own child from the keeping of the mother, he does not thereby commit an offence, because if the natural guardian of the minor, and the mother can not have a permanent right of guardianship in preference to that of a father. Therefore, even accepting that the applicant no.1 retained the custody of children with him when non applicant left the matrimonial house, by no stretch of imagination it can be said that he has committed offence of wrongful confinement by retaining children in his custody. Therefore, issuance of production warrant under section 97 of the Code was improper as also illegal exercise of jurisdiction.

18. Under section 6 of the Hindu Minority and Guardianship Act, the mother is guardian of the child who has not completed age of 5 years and may have custody of minor. According to section 6, preferential guardian is the natural father, except when minor has not completed age of five years, in which circumstances the custody shall be that of mother. The use of the word "ordinarily" used in section 6 reflects legislative intent to be that welfare of the child has to be kept in view and thereafter custody should be decided. Such a question of welfare of the child is to be decided by the Civil Court in an appropriate proceeding as observed by the Apex Court in AIR 1987 SC 3 - (Mrs. Elizabeth. Vs. Arvand) Paramount consideration is welfare of the child. Therefore, the learned Additional Sessions Judge was not justified to direct that the children shall be produced by applicant no.1 for handing over them in the custody of the mother non applicant till they attain majority. Such direction is not contemplated in terms of section 97 of Cr.P.C.

19. The same legal position has been enunciated in the case of Banarsi Lal Petitioner. Vs. Smt. Neelam and others Respondents - AIR 1969 DELHI 304 while considering the provisions under section 100 of Cr.P.C. (which was corresponding to section 97 of the Code), it is observed "Section 100 Criminal P.C. is of course a provision of emergency, but this by itself does not mean that the Magistrate acting under this section is to issue warrants of search automatically without applying judicial mind to the allegations contained in the application and to the other material which may be available to him. The expression "reason to believe", which is the real core of this section, implies a belief in judicial mind arrived at after considering all the available material with a sense of responsibility and effort of mind, without ignoring so far as possible, the other side of the controversy.

20. This Court has in the case of Sk. Razak Applicant Vs. Riyasathbi and others - Opponent - 1975 CRI.L.J. 1131 has held that Magistrate coming to conclusion that there was confinement of the child which amounted to an offence, issuance of warrant under section 100 Cri.P.C. (1898) was justified and that it being the subjective satisfaction of the Magistrate, can not be lightly interfered with at the revisional stage unless a strong case is made out. Learned counsel for the non applicant has heavily placed reliance on this decision to buttress submission that interference with the order passed by learned Additional Sessions Judge in the case before hand is not called for. Having regard to the facts and circumstances of the case before hand and particularly learned Magistrate had reached the conclusion that the children being retained in the custody of applicant no.1, father did not amount to wrongful confinement, the application of provision under section 97 Cr.P.C. by the learned Additional Sessions Judge for issuance of warrant was absolutely improper, there is justification for this court to interfere with the order passed by the learned Additional Sessions Judge. The position would have been different had the Magistrate having exercised jurisdiction under section 97 of Cr.P.C. issued production warrant directing the applicant no.1 to produce the children, then in that case, there would have been no justification for interfering with the subjective satisfaction of the Magistrate for issuing the warrant.

21. The Andhra Pradesh High Court in the case of Ashok Thadani - Petitioner Vs. Ramesh K. Advani and others - Respondents - 1982 Cri.L.J. 1446 while considering the powers of the Magistrate under section 97 of the Criminal Procedure Code has observed that the Magistrate is not empowered to issue search warrant under section 97 on mere allegations made in the affidavit filed along with the petition before him. The expression "has reason to believe any person is confined under such circumstances that the confinement amounts to an offence" requires the Magistrate on guard before he issues search warrant.

22. In the case before hand while narrating the facts in earlier part of judgment it is stated that the children were in the custody of the applicant no.1 and the non applicant till the time they were living together. It is a matter of record that the non applicant left the matrimonial home, leaving the children in the custody of the applicant no.1, that was also three months before the institution of the application by the non applicant in the court of the Magistrate. Taking into consideration the material on record, the learned Magistrate had come to the conclusion that the children being remaining in the custody of the applicant no.1 did not amount to an offence of wrongful confinement, nor there was any specific allegation by the non applicant that the applicant no.1 has by use of physical force, taken the children in his custody and retained them. The learned Magistrate also found that the non applicant was not in any manner deprived of the custody of the children. It is needless to say that if at all the non applicant desired to have custody of the child, the only recourse which she could have was to initiate proceedings for custody of the children as contemplated under section 6 of the Hindu Minority and Guardianship Act. The very fact that the children having in the exclusive custody of the applicant no.1 for over three months, justified the Magistrate to come to the conclusion that there was no wrongful confinement of the children by the applicant no.1. In such circumstances the learned Magistrate was perfectly justified in not exercising jurisdiction under section 97 of Cri.P.C. for issuance of production warrant. As against that the learned Additional Sessions Judge has committed an error in law as well as in exercise of jurisdiction under section 97 of the Cr.P.C., in issuing direction to produce the children in the court. There was absolutely no jurisdiction and justification also for Additional Sessions Judge to issue production warrant under section 97 of Cr.P.C., if that is so then this Court has justification to interfere with the order. The order passed by the learned Additional Sessions Judge can not sustain being intrinsically illegal and in excess of the jurisdiction envisaged under section 97 of Cr.P.C. The revision application, therefore, has to be allowed and hence the following order is passed :

ORDER

23. The revision is allowed. The order passed by learned Additional Sessions Judge that is under challenge is set aside and the order passed by the Magistrate is restored.

Revision allowed.