IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 22ND MARCH 2011 / 1ST CHAITHRA 1933 Crl.MC.No. 4883 of 2010() ------------------------- CC.522/2010 of JUDL. MAGISTRATE OF FIRST CLASS COURT, WADAKKANCHERY .................... PETITIONER(S): ACCUSED NO.1: -------------------------------------------------- SUNIL SUNDARAM, AGED 31 YEARS, S/O.SUNDARAM, KISHNA MANDIRAM, THEKKETHARA DESOM, PAZHAYANNUR VILLAGE, THRISSUR. BY SRI.P.VIJAYA BHANU, SENIOR ADVOCATE, BY ADV, SRI.M.REVIKRISHNAN, SRI.V.C.SARATH. RESPONDENT(S): DEFACTO COMPLAINANT AND STATE: ------------------------------------------------------------------------------------- 1. SUNISHA, W/O.SUNIL SUNDARAM, SELLA NIVAS, PARAMELPADI THERUVU, KODAZHY VILLAGE, THALAPPILLY TALUK. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R1 BY ADV.SRI.P.K.ANIL R2 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P.JOSEPH, J. ==================================== Crl. M.C. No.4883 of 2010 ==================================== Dated this the 22nd day of March, 2011 O R D E R Petitioner is the first accused in C.C. No.522 of 2010 of the court of learned Judicial First Class Magistrate, Wadakkancherry. He, along with two others is accused of commission of offences punishable under Sections 188, 417, 363, and 344 read with Section 34 of the Indian Penal Code. Case arose from a matrimonial dispute between petitioner and first respondent which led to a dispute regarding custody of their child aged 2½ years and that matter being taken to Family Court, Thrissur. On 29.03.2010 the Family Court gave custody of the child to the petitioner for three hours between 3.00 to 6.00 p.m. on 08.04.2010 as seen from Annexure-B, order. Accordingly custody of child was given to the petitioner. Petitioner is said to have not returned the child to the first respondent on the expiry of the time granted as per Annexure-B, order and instead taken the child allegedly with the assistance of accused 2 and 3 to various places including Bangalore. Thereon first respondent filed a private complaint before learned Judicial First Class Magistrate for the CRL.M.C. No.4883 of 2010 -: 2 :- above said offences. That complaint was forwarded to the police for investigation and the police after investigation submitted a final report for the offences above stated against petitioner and others. Petitioner seeks to quash proceeding against him on various grounds including that no offence as alleged is made out and the cognizance taken by the learned Magistrate for offence under Sec.188 of the IPC is illegal. I have heard learned counsel for petitioner, first respondent and the learned Public Prosecutor. According to the learned counsel for first respondent, assuming that offences under Sec.363 and 188 of the IPC are not made out, other offences against petitioner and others are made out and hence it is a matter for trial. This Court will not be justified in interfering under Section 482 of the Code of Criminal Procedure (for short, “the Code”) and quashing the proceeding. Learned Public Prosecutor submitted that the question whether offences are made out has to be decided on the strength of the allegations made in the final report. 2. It is not disputed that based on the final report alleging offences referred above learned Magistrate has taken cognizance for the said offences and issued process to the petitioner and others in C.C. No.562 of 2010. Question for CRL.M.C. No.4883 of 2010 -: 3 :- consideration is whether proceeding against petitioner is liable to be quashed under Sec.482 of the Code. If the allegations made in the final report if accepted would not make it a case, it is within the power of the High Court to quash the proceeding. 3. It is not disputed that by Annexure-B, order petitioner was given custody of his son aged 2½ years for three hours from 3.00 to 6.00 p.m. on 08.04.2010. It is also not disputed that whatever be the reason thereof petitioner did not return the child to the first respondent on the expiry of the said time. 4. Section 188 of the IPC deals with disobeyance to an order duly promulgated by public servants whereby the person concerned is directed to abstain from a certain act, or to take certain order with certain property in his possession or under his management. A Learned Judge of this Court considered the amplitude of Sec.188 of the IPC and held in Joseph George v. State of Kerala (2000 [3] KLT 275) that the said provision contemplates orders made by public functionaries for public purposes and not an order made in a civil suit. In the present case the allegation is that Annexure-B, order of Family Court has been violated. Annexure-B, order is not one passed for any public purpose and instead, it is an order passed by the Family CRL.M.C. No.4883 of 2010 -: 4 :- Court in a proceeding between the father and the mother concerning interim custody of their child which is of a civil nature and which does not involve any public purpose. Hence violation of Annexure-B, order cannot be said to constitute an offence under Sec.188 of the IPC. 5. It is also argued by learned counsel that learned Magistrate was not correct in taking cognizance of the said offence in view of the interdict contained in Sec.195(1)(a)(i) of the Code. The said provision says that no court shall take cognizance of an offence punishable under Secs.172 to 188 (both inclusive) of the IPC except on a complaint in writing of the public servant concerned or some other public servant to whom he is administratively subordinate. In Joseph George v. State of Kerala (supra) it was also held that to take cognizance of an offence under Sec.188 of the IPC, there must be a complaint by the public servant or his subordinate Officer as provided in Sec.195(1)(a)(i) of the Code. The Supreme Court in C.Muniappan v. State of T.N. ([2010] 9 SCC 567 at page 573) has also indicated that cognizance taken for offence under Sec.188 of the IPC except in the manner provided under Sec.195(1)(a)(i) of the Code cannot be sustained. Hence learned CRL.M.C. No.4883 of 2010 -: 5 :- Magistrate was not correct in taking cognizance of offence under Sec.188 of the IPC for the above said reasons. 6. Next allegation is commission of offence under Sec.417 of the IPC. The said provision deals with punishment for cheating. Cheating is defined in Sec.415 of the IPC as “by deceiving any person fraudulently or dishonestly inducing such person so deceived to deliver any property to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Learned counsel for the first respondent strenuously contended that but for the inducement made by the petitioner that he would return the child after 6.00 p.m on 08.04.2010, first respondent would not have handed over the child to the petitioner and that on account of failure of petitioner to do so the first respondent has been put to much agony which constituted offence of cheating as defined in Sec.415 of the IPC. 7. I am afraid, I am unable to accept that argument. For, to attract the offence of cheating, delivery of property, act CRL.M.C. No.4883 of 2010 -: 6 :- or omission to do an act must be on the strength of the inducement given by the accused. Here, custody of the child was given to the petitioner not on the strength of any inducement made by the petitioner but on the strength of Annexure-B, order of the court with which the first respondent also was bound. Thus the basic ingredient to constitute an offence of cheating is lacking in this case. No offence punishable under Sec.417 of the IPC is therefore made out. 8. So far as offence under Sec.363 of the IPC is concerned, it provides the punishment for kidnapping. Kidnapping from lawful guardianship is defined in Sec.361 of the IPC and includes taking or enticing any minor as referred to therein out of the keeping of the lawful guardian of such minor. Explanation says that lawful guardian in the Section include any person lawfully entrusted with the care or custody of such minor or other person. It is to be borne in mind that though as per Annexure-B, order petitioner was given custody of the child for a limited period, on 08.04.2010 petitioner continued to be its lawful and natural guardian. It is not as if that lawful and natural guardianship of petitioner was divested from him for any reason whatsoever as per any order of the court. The explanation to CRL.M.C. No.4883 of 2010 -: 7 :- Sec.361 of the IPC cannot work against petitioner. That explanation could come into operation only if somebody other than the lawful guardian took or enticed the child from the custody of any person though himself not a lawful guardian but is lawfully entrusted with the care and custody of the child. At the time when the alleged offence was committed, petitioner continued to be the lawful and natural guardian of the child. Question is whether in such a situation where petitioner is the natural and lawful guardian of the child, he in violation of the Annexure-B, order either to return the child to the first respondent and took the child to different places, as the first respondent alleged, offence under Sec.363 of the IPC is made out. The Allahabad High Court in Khyali Ram v. State of U.P. (1971 Crl. L.J. 1365) has held that the father being the natural and lawful guardian removal by him of his son aged 5 years from his mother is not an offence coming under Sec.363 of the IPC though it may be open to the mother to claim custody of the child by appropriate proceeding in the civil court. In Chandrakala Menon v. Vipin Menon ([1993) 2 SCC 6) allegation was that the father (being the natural and lawful guardian of the child) kidnapped the child from the custody of its maternal grand father CRL.M.C. No.4883 of 2010 -: 8 :- with whom the child was living in view of the strained relationship between the father and mother of the child. It was held that the act of the natural and lawful guardian taking the child did not amount to kidnapping as defined in Sec.361 of the IPC. 9. In the present case I stated that by no order of court petitioner has been divested of his guardianship of the child. Notwithstanding that the child was in the custody and care of first respondent, petitioner continued to be its lawful and natural guardian. In that case even in violation of Annexure-B, order the child was removed from the custody of the first respondent, that cannot amount to the offence of kidnapping from the lawful guardianship as understood in Sec.361 of the IPC punishable under Sec.363 of the IPC as stated in the final report. 10. What remained is Sec.344 of the IPC. Allegation is that the child was confined in the room where petitioner was staying. 'Wrongful confinement' is defined in Sec.340 of the IPC as wrongful restraint of any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits. Mens rea is an essential ingredient of the said offence. Here is a case where petitioner allegedly carried his 2½ year old child with him to different places. It is not as if a CRL.M.C. No.4883 of 2010 -: 9 :- child aged 2½ years could be allowed to proceed in the way it liked. The father has the responsibility to keep the child with him wherever he is. Petitioner is said to have gone with the child to different places including Bangalore and during the time petitioner was housed in a hotel the child was also remained with him. I am not inclined to think that keeping the child with the petitioner in the hotel where petitioner was staying for the time being amounted to wrongful confinement of the child as understood in Sec.340 of the IPC which is punishable under Sec.344 of the IPC. On hearing learned counsel on both sides and the learned Public Prosecutor and going through the final report and connected materials I am persuaded to think that no offence as alleged is made out against petitioner so that he should face the trial. 11. I do not intend to mean that the alleged act of petitioner if it is in violation of Annexure-B, order is without any consequence. I do not also intent to give my assent to the violation, if any of the order of the court. But a prosecution as in the present case is not the remedy and it cannot lie. It is open to the first respondent to bring the matter to the notice of the Family Court and initiate appropriate action for non-compliance CRL.M.C. No.4883 of 2010 -: 10 :- with Annexure-B, order as law permits. Resultantly, Criminal Miscellaneous Case is allowed. Annexure-C, final report, the cognizance taken thereon and all proceeding in C.C. No.522 of 2010 of the court of learned Judicial First Class Magistrate, Wadakkancherry against petitioner are quashed. THOMAS P. JOSEPH, JUDGE. vsv