Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Writ No 195 of 2012 ====================================================== 1. Md. Samsad S/O Md. Naim R/O Moh-Takiyapar, P.S.Danapur, Distt- Patna .... .... Petitioner/s Versus 1. The State Of Bihar Through Director General Of Police Bihar, Patna 2. S.S.P. Patna 3. S.D.P.O. Danapur 4. S.H.O. Danapur 5. Md.Washikhan S/O Late Nizamuddin R/O Moh-Takiyapar(In The House Of Jagdish Pd. Gupta), P.S.Danpur, Distt-Patna 6. Samila Khatoon W/O Md.Washi Khan R/O Moh-Takiyapar(In The House Of Jagdish Pd. Gupta), P.S.Danpur, Distt-Patna .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : M/s Sunil Kr & Krishna Chandra Verma, Advocates For Respondent/s 5&6 : M/s Rudra Deo & Ajay Kr, Advocates ====================================================== CORAM: HON’BLE MR JUSTICE NAVANITI PRASAD SINGH AND HON’BLE MR JUSTICE ASHWANI KUMAR SINGH ORAL ORDER (Per: HONOURABLE MR JUSTICE NAVANITI PRASAD SINGH) 9 24-07-2012 This writ petition arises from a peculiar Patna High Court CR. WJC No.195 of 2012 (9) dt.16-07-2012 2 / 13 2 situation and is ostensibly by the father Md Samsad for the custody of his minor son Md Aman who would be about 7 years of age. It is alleged that he is being kept in illegal confinement by private respondents No 5 and 6, namely, Md Washikhan and his wife Samila Khatoon respectively. It is necessary first to notice the facts as we think that in matters of child custody, the attitude of the guardians and the welfare of child are important considerations. In the writ petition, it is stated that the private respondents being respondents No 5 and 6 are close relatives of the petitioner. It is not disputed that petitioner’s wife and respondent No 6 are first cousins. They live in immediate neighbourhood at Danapur. In the writ petition, it is alleged that on 24.09.2008, respondents No 5 and 6 took petitioner’s son Md Aman to play to their house but then refused to return him or let him come back. On 26.09.2008, a complaint was filed by the brother-in-law of respondent No 5 before the Additional Chief Judicial Magistrate (ACJM), Danapur giving rise to Complaint Case No 872C of 2008 against the petitioner’s wife and other family members to allegedly bring pressure on them not to seek the return of the child in which case summons had been received by the petitioner. Regrettably, the copy of the complaint was not Patna High Court CR. WJC No.195 of 2012 (9) dt.16-07-2012 3 / 13 3 annexed to the writ petition. It is further stated that on 30.06.2009/08.07.2009, the wife of the petitioner filed a complaint in the Court of ACJM, Danapur giving rise to Complaint Case No 730C of 2009 as against respondents No 5 and 6 and some others, inter alia, alleging that on 24.09.2008, the private respondents, with others, had come and kidnapped her child from her house and refused to return the same. They were threatening the complainant against taking any action. They had come on 25.06.2009 and beaten them also. This complaint is Annexure 1. Upon insistence by the Court, a supplementary affidavit was filed on behalf of the petitioner by which the criminal complaint case No 872C of 2008, as filed against petitioner’s wife on 26.09.2008, has been placed on record as Annexure 2. Upon these allegations, the writ petition was filed on 15.02.2012 praying for restoration of custody of the minor child. In view of the facts aforesaid, this Court issued notices for the appearance of respondents No 5 and 6 who appeared. We directed them to produce the child and also directed all the parties to be personally present in Chambers. Accordingly, on 08.05.2012, petitioner’s wife, respondents No 5 and 6 and the child were present. Petitioner, on the plea that he was at Delhi and could not come immediately, was absent. We talked to the parties Patna High Court CR. WJC No.195 of 2012 (9) dt.16-07-2012 4 / 13 4 and we talked to the child in Chambers. We then directed respondents No 5 and 6 to file a detailed counter affidavit and gave liberty to the petitioner to file rejoinder, if any to that affidavit and posted the matter for 28.06.2012 when presence of all parties was also ordered. When the matter was taken up on 28.06.2012, though all the parties and the child was present, petitioner had not yet filed his reply to the counter affidavit. We gave him an opportunity and, accordingly, on 04.07.2012, we heard the parties. We talked to the parties individually. Reply to counter affidavit having been filed, we perused the same and after hearing the learned counsel for the parties, reserved the case For Orders. In the counter affidavit that was filed on behalf of respondents No 5 and 6, it was clearly stated that the parties were closely related, the two ladies being the first cousins and lived in the same neighbourhood. It was stated that as the petitioner already had two children and he was poor, when the third child Md Aman was born, petitioner gave him to the custody of respondents No 5 and 6 for his proper care and upbringing. In the counter affidavit, an affidavit sworn by the petitioner on 22.09.2008 stating and admitting the aforesaid fact has been annexed as Annexure A. It is further stated that an informatory Patna High Court CR. WJC No.195 of 2012 (9) dt.16-07-2012 5 / 13 5 petition was also filed by the petitioner before the ACJM being Informatory Petition No 1081 of 2008 on 24.09.2008 clearly stating that he had voluntarily handed over the child Md Aman about four years back to respondents No 5 and 6. The said informatory petition is Annexure B to the counter affidavit in which the writ petitioner is the informant and his wife and others have been shown as opposite parties. It is stated in the informatory petition, as filed by the writ petitioner, that the wife of the petitioner and other relations are threatening respondents No 5 and 6 to return the child otherwise they would be implicated in false case. In the cou

Applicable IPC Section: 379

Statute Text:
Section 379 of the Indian Penal Code. Theft. Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.