Crl. Misc. No.M-19781 of 2011 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Date of Decision: August 17, 2011 1. Crl. Misc. No. M-19781 of 2011 Dr. Anil Rathee …..Petitioner Vs. State of Haryana …..Respondent 2. Crl. Misc. No. M-20797 of 2011 Sandeep and another …..Petitioners Vs. State of Haryana …..Respondent CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.V.D. Sharma, Advocate for the petitioners. Mr.K.S. Sidhu, DAG, Punjab. Mr.Surender Saini, Advocate for the complainant. Crl. Misc. No.M-19781 of 2011 [2] -.- M.M.S. BEDI, J. (ORAL) This order will dispose of two petitions bearing Crl., Misc. No.M-19781 and M-20797 of 2011. The FIR was registered at the instance of Unesh wife of Anil Rathee alleging that her child was kidnapped from the custody of the complainant from the Court premises on May 28, 2011. Sandeep and Sunny had allegedly picked up the child from the Court premises and handed over the custody to petitioner Anil Rathee. Counsel for the petitioners has contended that on May 28, 2011 the child had voluntarily joined petitioner Anil Rathee but the story of kidnapping has been concocted. It has also been argued that earlier also the custody of the child was with Anil Rathee at the time of separation of the couple but Sandeep, real brother of the complainant, on April 19, 2010 had forcibly kidnapped the minor child from his custody regarding which FIR No.122 dated April 19, 2010 had been registered against Sandeep. Counsel for the complainant has opposed the petition. State counsel has informed that the earlier FIR registered against the brother of complainant has been cancelled on December 22, 2010. After hearing counsel for the parties, this Court is of the considered opinion that it will be debatable whether the husband can be said to have kidnapped his own son from custody another natural guardian. No opinion can be expressed at this stage whether the allegations in the FIR registered against Sandeep regarding kidnapping of the child by him were Crl. Misc. No.M-19781 of 2011 [3] actually true but the fact remains that at present the custody of the child is with petitioner Anil Rathee, the husband of the complainant. The matter regarding custody of the child is sub-judice before the Guardian Court. It will be the prerogative with the Guardian Court to order interim delivery of the custody of the child or otherwise to any of the parents taking into consideration the welfare of the child in accordance with law. Though Sandeep and Sunny are not named in the FIR but the allegations against them are serious. Petition bearing Crl. Misc. No. M-20797 of 2011 for pre-arrest bail filed by Sandeep and Sunny is hereby dismissed as no extraordinary exceptional circumstances exist to grant the concession of pre-arrest bail to them. The petition bearing Crl. Misc. No. M-19781 of 2011 is allowed without prejudice to the rights of the complainant to seek the custody of the child in accordance with law. It is ordered that in case of arrest of petitioner Anil Rathee he will be released on bail to the satisfaction of the arresting officer subject to the conditions that he will join investigation as and when required by the police; he will not tamper with the evidence or hamper the investigation in any manner and that he will abide by any directions of the Guardian Court regarding the delivery of the custody of the child. Nothing mentioned in this order will prejudice the rights of the parties in the controversy pending before the Guardian Judge. August 17, 2011 (M.M.S.BEDI) sanjay JUDGE Crl. Misc. No.M-19781 of 2011 [4]