Shailaja Shankar Raul, Age : 40 years v. The State of Maharashtra

Mr. R.R. Mantri, Advocate, for the applicant. Mr. P.N. Mule, Additional Public Prosecutor, for respondent no.1. Mr. Uday S. Malte, Advocate, for respondent nos.2 and 6. Respondent nos.3 to 5 served (Absent). ........................ CORAM : K.U. CHANDIWAL, J. DATE : 8TH MAY 2012 COURT'S ORDER :

#1. Heard. (3) Criminal Application No. 1874 of 2012

#2. By the order dated 10-2-2012 recorded by the learned Judicial Magistrate, First Class, Shevgaon (District : Ahmednagar), in E.Cri.M.A.No. 288 of 2011, whereby earlier directions in terms of Section 97 of the Code of Criminal Procedure were recalled / not given effect to and the application seeking custody of the minor by virtue of warrant under Section 97 of the Code of Criminal Procedure was set aside. Same is questioned in terms of Section 482 of the Code of Criminal Procedure.

#3. In the feud between respondent no.2 and the applicant, Shailaja, the child is sufferer and has been treated lika a wag. There is no controversy that the child is born on 12-5-2007 out of illegitimate relations between the applicant, Shailaja, and respondent no.2, Ramchandra.

#4. An application for search warrant for the child under Section 97 of the Code of Criminal Procedure was moved before the learned Judicial Magistrate, First Class, Shevgaon, who initially directed issuance of warrant on 23-12-2011 as under : (4) Criminal Application No. 1874 of 2012 "1) Issue search warrant against opponent nos.1 to 4 for possession of opponent no.5, through P.I., Shevgaon. 2) Issue show cause notice to opponent no.1 as to why opponent no.5 should not be given in possession of applicant."

#5. After causing appearance by respondent no.2, Ramchandra, and others, real facts were informed to the court and consequently, warrant under Section 97 of the Code of Criminal Procedure was terminated.

#6. Mr. R.R. Mantri, learned Counsel for the applicant / mother, submits that there is no illegality in initial order under Section 97 of the Code of Criminal Procedure, as the child was legitimately to remain in custody of the applicant, being mother. This is more so, according to the learned Counsel, in terms of Section 6(b) of the Hindu Minority and Guardianship Act, 1956. Learned Counsel submits, since offence of kidnapping as defined under Section 361 of Indian Penal Code, is committed by respondent no.2, Ramchandra, the learned Magistrate was justified, directing search warrant. Learned Counsel submits, applicability of Section 181(2) of the Code of Criminal Procedure by the learned Judge in termination of search warrant (5) Criminal Application No. 1874 of 2012 or staying the same on 9-1-2012, is erroneous, illegal and demonstrate absolute non-application of mind. He reiterates, there is cardinal distinction between a legitimate and illegitimate child and custody of illegitimate child exclusively to remain with mother.

#7. Mr. U.S. Malte, learned Counsel for respondent nos. 2 and 6, does not dispute the illegitimate relations the respondent no.2 had with the applicant and birth of the child. He submits that the child is properly taken care of, his custody was effectively handed over by the mother in January 2009 as at the material time she was appearing for examination and was staying at a hostel which does not permit keeping with children. The care for upkeeping of child is taken, the school record is tendered with the affidavit. He has relied on following reported judgments: (1) Judgement of this court in the case of Dr. Mohan N. Bhawe Vs. Travel Force Hede Consultancy Company Ltd. & another (2005 (9) LJSOFT (URC) 68). (2) Judgment of Hon. Supreme Court in the case of Didigam Bikshapathi and another Vs. State of A.P. (AIR 2008 SC 527). (3) Judgment of Hon. Supreme Court in the case of Anjali Anil Rangari Vs. Anil Kripasagar Rangari and others ((1997) 10 SCC 342). (6) Criminal Application No. 1874 of 2012 Judgment of Hon. Supreme Court in the case of (4) Chandrakala Menon (Mrs.) and another Vs. Vipin Menon (Capt.) and another ((1993) 2 SCC 6). (5) Judgment of this court in the case of Kalpesh Ishwardas Sanghavi Vs. State of Maharashtra & another (2005(4) LJSOFT (URC) 3). (6) Judgment of this court in the case of Bapu s/o. Kisan Ladkat & others Vs. State of Maharashtra & others (2006(12) LJSOFT 61). (7) Judgment of this court in the case of Nagnath s/o. Maruti Bansode Vs. Gaulan @ Anita w/o. Nagnath Bansode & another (2010 (3) LJSOFT (URC) 16). (8) Judgment of this court in the case of Anil s/o. Baburao Angalwar Vs. Smt. Cynthia Bernard Samuel w/o. Anil Baburao Angalwar & another (2007(7) LJSOFT 71). Judgment of this court in the case of Vishal Jivan Jogure (9) Vs. Smt. Megha Vishal Jogure and another (2005(9) LJSOFT 47). (10) Judgment of this court in the case of Marotrao s/o. Shamrao Pachare and others Vs. Usha Marotrao Pachare (2004(1) LJSOFT 82).

#8. The present application in terms of exercise under Section 482 of Cr.P.C. basically is not warranted, as the applicant Smt. Shailaja, has efficacious remedy under Section 397 of Cr.P.C. The application is not maintainable. However, having (7) Criminal Application No. 1874 of 2012 given go by to the said provision, the fact remains that when under the provisions of the Guardian and Wards Act, 1890, and specifically under Section 25 thereof, procedure is crafted as to custody of the minor, the shortcut which mother has tried to exhaust in terms of Section 97 of Cr.P.C. is not to be recognised a legitimate act, even if child is born out of illegitimate relations.

#9. Section 361 of Indian Penal Code, attributing kidnapping by the father of the child is factually incorrect, as it was the applicant / mother in January 2009, lawfully handed over custody of the minor to the father. These provisions will not be applicable to the respondent no.2 being natural father of the child. The delicate question of custody of minor cannot be exhausted by such pressure tactics. For an action in terms of Section 97 of Cr.P.C., there must be an offence to have been committed in respect of confining a person. However, there is no offence committed by respondent no.2. He is upkeeping the minor openly as the child is admitted in the school. It is not that the boy is confined and nobody is allowed to meet him. It is not that the applicant / mother was unaware of the whereabouts of the boy. An erroneous picture is projected to take the case in the ambit of Section 97 of Cr.P.C., thereby bypassing the requisite provisions under the Hindu Minority & Guardianship Act, 1956, or under the Guardian and Wards Act, 1890. (8) Criminal Application No. 1874 of 2012

#10. The order of search warrant in terms of Section 97 of Cr.P.C. was illegal and hence the subsequent order passed by the learned Magistrate does not call for interference, nor it can be said to be associated with non-application of mind. Effect of search warrant on mind set of boy cannot be ignored, as there is no wrongful confinement of the boy. Parties should note that the child is not mere chattel or he is not mere a play-thing for the parents and his well being is of importance

#11. Application lacks merits, dismissed. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/ka1874