Gujarat High CourtVinodbhai Dhudabhai Bhagora vs Kadiben D/O Kanabhai on 10 April, 2013Author:R.D.KothariBench:R.D.KothariVINODBHAI DHUDABHAI BHAGORA....Applicant(s)V/SKADIBEN D/O KANABHAI SAKABHAI KALASVA
	 
	 
	 
	 
	 
	 
	 
	 
	

 
 


	 


	R/SCR.A/1430/2008
	                                                                    
	                           JUDGMENT

 

 


 
	  
	  
		 
			 

IN
			THE HIGH COURT OF GUJARAT AT AHMEDABAD
		
	

 


 


 


SPECIAL CRIMINAL
APPLICATION  NO. 1430 of 2008
 


 


 

 

 

FOR
APPROVAL AND SIGNATURE: 

 

 

 

 

 

HONOURABLE
MR.JUSTICE R.D.KOTHARI
 

 

 

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Whether
			Reporters of Local Papers may be allowed to see the judgment ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

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To
			be referred to the Reporter or not ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

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Whether
			their Lordships wish to see the fair copy of the judgment ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

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Whether
			this case involves a substantial question of law as to the
			interpretation of the Constitution of India, 1950 or any order
			made thereunder ?
			 

 

			
		
		 
			 

 

			
		
	
	 
		 
			 

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Whether
			it is to be circulated to the civil judge ?
			 

 

			
		
		 
			 

 

			
		
	

 

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VINODBHAI DHUDABHAI
BHAGORA....Applicant(s)
 


Versus
 


KADIBEN D/O KANABHAI
SAKABHAI KALASVA  &  1....Respondent(s)
 

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Appearance:
 

MR
MITESH L RANGRAS, ADVOCATE for the Applicant(s) No. 1
 

MR
JV JAPEE, ADVOCATE for the Respondent(s) No. 1
 

MR
NJ SHAH, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 2
 

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CORAM:
				
				
			
			 
				 

HONOURABLE
				MR.JUSTICE R.D.KOTHARI
			
		
	

 


 

 


Date : 10/04/2013
 


 

 


ORAL JUDGMENTThe present petition is
filed against the order dated 9.7.2008 passed by the learned
Additional Sessions Judge, Modasa, in Criminal Revision Application
No. 122/2006, whereby the learned Additional Sessions Jude was
pleased to affirm the order dated 18.10.2006 passed by the learned
learned 2nd J.M.F.C., Modasa, below Exh.1 in Criminal
Misc. Application No. 268/2006. The later Court had passed an order
to hand over custody of child Dilip to his mother i.e. respondent
No.1 herein. It may be stated that before the learned J.M.F.C., the
mother was applicant and the father, who is petitioner herein, was
opponent.2.	It appears that the
marriage between the parties had taken place in June, 1997. It is the
say of the respondent No.1-wife that after some time of their
marriage, the petitioner-husband started harassing her mentally as
well physically. It is the say of the wife that on 7.2.2006, she was
driven out from her in-laws  house. It appears from the application
of the wife that their minor child Dilip was separated from her on
the day when she was driven out from the petitioner s house. Later
on, the wife filed present complaint in the Court of learned
J.M.F.C., Modasa  on 22.6.2006. The wife had prayed for issuance of
Search Warrant as provided underSection 97of the Code of Criminal
Procedure.3.	The learned J.M.F.C,
Modasa in para-4 of  his order has mentioned that the date of birth
of the child is 11.6.2000 and presently the child is studying in 2nd
standard. After mentioning these facts, it is observed by the learned
Magistrate that considering the age of the child,  it can be said
that the grooming and growth of the child would be more better under
the guardianship of the mother than under the guardianship of the
father. Holding so, the trial Court had allowed the application.4.	The Sessions Court,
Modasa, affirming the order of the trial Court, has held that from
the material on record, it is revealed/disclosed that the
respondent-wife is driven out from the house of the petitioner by
causing harassment to her. Relying on the injury certificate 
produced by the wife, the learned Sessions Judge was pleased to
affirm the order of the learned J.M.F.C.
 


 


 
	  


	Heard learned advocate
	Mr. Mitesh L. Rangras for the petitioner, Mr. J.V.Japee fo the
	respondent No.1 and learned A.P.P. Mr. N.J.Shah for the State.This Court had granted
	interim relief vide order dated 13.4.2009.7.	During the course of
arguments, the learned advocate for the petitioner drew the attention
of the Court to a decision in the case  ofRamesh v. Laxmi Bai
(Smt.), 1998(9) SCC 266 and Duryodhan Mahanta v. Saraswati Mahanta,
1992 Cri.L.J. 2231. Placing reliance on these two case laws,
it was submitted by learned advocate for the petitioner thatSection
97Cr.P.C cannot be invoked against natural guardian.8.	Learned advocates for
the respondents have opposed the submissions made by the learned
advocate for the petitioner.In Ramesh Laxmi Bai
	(Smt.) s case (supra), the Hon ble Apex Court in Para-4
	of the judgment has held 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 underSection 97CrPC in the established facts of the case
is untenable.Section 97CrPC 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.9.1		In Duryodhan
	Mahanta s case (supra), A Pasayat, J. (as he then was) has
	held in para-4 thus :Provisions contained
		inS.97of the Code are emergent in nature. A Magistrate is
		authorized to issue a search warrant if he has reason to believe or
		on the truth of the allegation about the wrongful confinement of a
		person. The Magistrate cannot issue search warrant unless
		confinement amounts to offence.S.97of the Code corresponds toS.100of the old Code of 1898. This section contemplates only
		wrongful confinement. Wrongful confinement is defined in Ss. 339
		and 340IPC. Use of the expression  reason to believe  makes
		the legislative intention very clear that unless Magistrate has
		reason to believe that a person is confined in such circumstance
		that confinement itself amounts to an offence, issue of a search
		warrant under this section is without jurisdiction. Expression
		 reason to believe  implies belief arrived at judicially after
		application of judicial mind on consideration of available
		materials with sense of responsibility and effort of mind without
		ignoring as far as possible other side of controversy. When the
		child is in the custody of either father or mother, it becomes
		rather difficult to immediately come to a conclusion 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 pre-condition 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 as an offence, actionu/s. 97would be
		improper. This Court in (1989) 2 OCR 565 : (1990 Cr.LJ, 1085)
		Yudhistir Mohanand v. Dalimbe Mohanand, held that when a father
		takes his own child from the keeping of the mother, he does not
		thereby commit an offence, because he is the natural guardian of
		the minor, and the mother cannot have a permanent right of
		guardianship in preference to that of a father.A similar view was
		expressed by Madras High Court in 1981 Cri.LJ (NOC) 113, K. Sarasu
		v. Segodan, to which reference was made in Yudhistir s case
		(supra). However, Keral High Court held that when a Muslim father
		took away a child aged about 4 years from the custody of his wife
		by use of physical force, Magistrate had reason to believe that
		confinement amounted to a wrongful confinement. (See: 1978 Kerala
		Law Times 33, corresponding to 1978 Cri.LJ (NOC) 98, K.Pareekutty
		v. Ayyikkal Ayissakutty, where a mother took the custody of a child
		under 5 years, it was held that no offence was prima facie
		committed.See :Banarsi Lal v. Smt. Neelam, AIR 1969 Delhi 304 :(1969 Cri.LJ 1370). When a natural father took away the child from
		the adoptive father, it was held thatS.100of the Old Code was
		inapplicable, as it was doubtful whether any offence had been
		committed. (See:Chagan Raj v. Hera Lal Doosai, AIR 1920 Cal.562 :
		(20 Cr.LJ 729). After the search is over and the person is found,
		then the concerned person is to be immediately brought to the
		Magistrate who has to make such order as circumstances warrant. The
		Magistrate before whom a person is produced by the Executive
		Officer, is to make such order as in the circumstances appears
		proper. Impugned order passed by learned JMFC, is in excess of his
		jurisdiction, because he did not consider the fact that the child
		was in custody of the father. Under S.6 of the Hindu Minority and
		Guardianship Act (in short the `Guardianship Act ), the mother is
		the guardian of a minor child who has not completed age of 5 years,
		and may have custody of minor. According toS.6, preferential
		guardian is natural father, except when minor has not completed age
		of 5 years, in which circumstances custody shall be that of mother.
		The use of the word `ordinarily  used inS.6reflects legislative
		intent to be that welfare of a child is to be kept in view and
		thereafter custody decided.Such question of welfare of child is to
		be decided by Civil Court in an appropriate proceeding as observed
		by Supreme Court inAIR 1987 SC 3, Mrs. Elizabeth v. Arvand.
		Paramount consideration is the welfare of the child. Therefore,
		learned JMFC was not justified to direct that child shall be in
		custody of mother, till he attains majority. Such a direction is
		not contemplated in terms ofS.97of the Code.10.		Thus, theratiolaid
down inthe above referred decision is that in an application for
Search Warrant underSection 97Cr.P.C., the Magistrate is required
to satisfy himself that there exists material to hold the belief that
confinement of a person in the circumstances can be said to be an
offence. In other words, if such confinement is not an offence, thensection 97CR.P.C, would not be attracted. In order to attractSection 97, the Magistrate has to have  reason to believe  and
secondly, such person should be placed in  wrongful confinement .
It is the wrongful confinement that elevates the confinement into an
offence.   Further, generally speaking, in case of natural guardiansection 97Cr.P.C., would not be attracted. Both the Courts below
have not considered this aspect. The learned J.M.F.C after mentioning
the facts has observed that grooming and growth of the child by the
mother would be better compared to the grooming and growth of the
child by the father.  The Court has materially erred in indulging in 
generalisation. It appears that medical certificate produced by the
respondent-wife has weighed with the learned Additional Sessions
Judge.  The learned Additional Sessions Judge, affirming the order of
the learned J.M.F.C, has not assigned any reasons in his order,
except relying on the medical certificate issued by the doctor
wherein the doctor has certified that the wife has received simple
injury because of beating. The reasons recorded by the learned
Additional Sessions Judge are not relevant to the case of the
petitioner.The reasons for
	difficulty in applyingsection 97in case wherein custody of child
	is with natural guardian are not far to seek. In case of natural
	guardian, confinement is less likely to be wrongful and unless such
	confinement is wrongful, Magistrate would not have jurisdiction to
	pass an order. So, except in cases wherein facts itself are of
	exceptional nature, special efforts ought to have been made by the
	applicant-petitioner in such case while claiming custody of child
	from natural guardian. In absence of making out such case by the
	applicant-respondent herein, application undersection 97must fail.12.	The learned advocate
for the respondent-wife has pointed out that despite the orders of 
two Courts for handing over custody of the child to the wife, the
petitioner has not obeyed the order. This grievance ought to have
been raised by the wife upon service of notice to her of this Special
Criminal Application. Such grievance cannot be raised at the time of
final hearing of the matter.13.	For the foregoing
reasons, this petition succeeds. The order passed by the learned
Additional Sessions Judge, Modas, in Criminal Revision Application
No. 122/2006, dated 9.7.2008      is hereby quashed and set aside.
Rule is made absolute.(R.D.KOTHARI, J.) 

 

Patel
 

 


 

 


 

 


 

 


 


	 


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