IN THE HIGH COURT OF JUDICATURE AT BILASPUR [C.G.1 CR.M.P. N0. d ^2, ^S /2010 PETITIONERS J^l61\- ^ o ..•- ^y"^ ..•"•""^.l^"".... ,A. -•""— >^--""' ^^^':'^.!^^. '^--••••"^^^" tA 1. Chandrasekhar Gu-olkar, aged-about 46 years, S/o Late Sri Govind Rao, 2. Dinkar Rao S/o Late Sri Govind Rao Girolkar, Aged-about 55 years, 3-Srinath S/o Chandra shekhar Girolkar Aged-about 6 years, 4.Akshada D/o Chandrashekhar Girolkar, Aged-about 10 years, From petitioner no. 3 SE 4 are the minor through their father Chadrashekhar Girolkar S/o late Sri Govind Rao Girolkar, AU are the R/o ward no. 14, near Bhima Talab, Jaajgir Thana, tahsil- Janjgir, Distt.- Janjgu- Champa [C.G.] VERSUS RESPONDENT '-' Smt. Sarala Girolkar, aged-about 40 years, W/o Chandrasekhar Gu-olkar, R/o Irrigation colony, Pamgarh, Thana- Pamgarh, Distt.- Janjgir Champa [C.G.] ^' PETITION UNDER SECTION 482 OF THE CRIMINAL PROCEDURE CODE '^,. ^ HiGH COURT OF CHHATTSSGARH : BiLASPUR Smale Bench: Hon'bie Shri Manindra Mohan Shrlvastava. J. PETiTiONERS RESPONDENT Cr.M.P. N0.733/2010 Chandrasekhar Girolkar and others Versus Smt. Sarala Giroikar PETITION UNDER SECTION 482 OF THE CODE OF CRIBfliNAl. PROeEDURE Present - Shri Sanjay Pafel, eounsei for the psfitioners. Shri Awadh Tripathi, counsei for Uie respondent. OS?AL Oty3ER (Passed on 4th December, 2S10) This petition under SecUon 482 CrPC is directed against order dated 16/08/2010 passsd by Sessions Judge, Janjgir-Champa in Criminal Revision No.48/2010 arising out of order dated 14/07/2010 passed by the Sub-Divistonai Magistrata, Pamgarh in case no.12/08. .^& 2. The reievant facte necessary for decision of the present pefition are that the respondent-Smt. Saraia Girolkar, wife of the petitioner No.l-Chandraseldiar Girolkar submitted an appiication under Section 97 and 98 of CrPC before tt»e Sub-Dhrisional Magistrate, Pamgarh for i^uance of search warrant and for production of minor chiidren nameiy Srinatti aged six years and Akshada aged 10 years on the pteadings that the petittoner No-1-Chandrasekhar and his brother- Dinkar Rao (petitioner No.2) have taken away her son and daughter and subjecting them to harassment and they are not saf®. On such application fited, the Sub-Di'visionat Magistrate, in purported exereise of powers under SecUon 97 CrPC, issued impugned seareh warrant on 14/07/2010 for production of two children, who are minor. The order passed by the Sub-Divisionai Magistrate was ^. /" chalienged by the petitioners by filing revision petition before the Sessions Judge, Janjgir-Champa, which has bsen rejeeted vide order dated 16/08/2010. 3. Leamed counsel for the petitioner submte that the provisions of Section 97 CrPC are not attracted in such cases where aliegaflons are that the ehildren have been taken away by the father. He submits that the father being the natural guardian, provisions of Section 97 CrPC are not attracted. He reiies upon the judgment of the Supreme Cpurt in the case of Ramesh vs. Smt. Laxmi Bai. 1999. CRU 5023 SC and Yudhistir Mohanand v. Daiimba Mohanand. 19SO. CRU 1085 (Orissa). In his submission, the entire proceedings are without jurisdiction and are infact misuse and abuse of the process of law. 4. On ttie other hand, learned counsel for the respondent raised an objection that ths petitioner No.1 being the father, has approached this Court but the ottier petitioners have no iocus to chaiienge the order and proceedings drawn under Section 97 CrPC. His further submission is that the provisions of Sectlon 97 CrPC wouid be attracted in a case iike the present one and ihe judgment of the Supreme Court in the case of Ramesh (Supra) is not appiicable because it is not disputed that vide order dated 30/04/2010, the Family Court rejected the application under Secfion 6 read with Section 10 of the Huidu Minority and Guardianship Act fiied by the petitjoner No.1. He submits that in such a case, where father, even after rejection of his application, keeps the custody of his minor chiidren, he is not outsida the teeth of proceedings under Section 97 CrPC. Learned counsei for the respondent further argued that the appiication was flied by the respondent not onty against the father of the chitdren but aiso against the petitioner No.2-Dinkar Rao, who is the brother of petitioner No.l-Chandrasekhar. •^' ^ 5. it is not disputed that the petitioner No.1 is the father of rninor chiidren Srinath and Akshada born out of the wed iock of petitioner No.l-Chandrasekhar Girolkar and the respondent-Smt. Sarala Giroikar. The appii<ation flied before the Sub-Divisionai Magistrate states that the petitioner No.1 and petitioner No.2 have taken away the minor chiidren and subjecting them to harassment. On such application being fiied, the Sub-Divisionai Magistrate proceeded to invoke provisions of Section 97 CrPC and issued seareh vi/an-ant on 14/07/2010, directing production of the two chiidren. The question which arises for consideration in this petition is whether in the facte and cireumstances of the case, the provisions under Section 97 CrPC couid be invoked by the mother against the father on such allegations and whether the Sub-Divisional Magistraie couid pass such order in purported exercise of powers under Section 97 CrPC. The issue involved in this petition is no ionger res integm, in view of the Judgment of the Suprerne Court in the case of Ramesh (Supra) wherein, in a similar situation, the mother sought search warrant under Section 87 CrPC for recovery of her son, upon which the Magistrate invoked jurisdiction under SecSion 37 CrPC and issued search warrant. it has been held by the Supreme Court that Section 97 CrPC prima facie is not attracted to the iacts and circumstances of the case where chjid is aiong with his own father. in tiie case of Antaii Anii Ranaari v. Anii Kripasaaar Ranaari and others. 1997 (101 Suoreme Court Cases, 342 also the Supreme Court heid - -"3. The oniy question that needs to be considered in ihe context of the facts and cireumstances of the present case is as to whether provisions of Section 97 CrPC could be invoked. it cannot be disputed that the rnother is aiso a naturai guardian under Section 6 of the Hindu Minority and Guardianship Act, 4 ^ 1956. if it is so, could it be said that the custody of itie two minor chiidren with the mother was iilegal and they wera under her wrongfui confinement? in the facts and cireurnstances of the case, we are unable to hold tiiat the custody of the chikaren with the mother was either uniawfui to hoid that the custody of the chiidren with the mother was either unlawful or thev were wrongfuiiy confined by the mother at Deihi. if this be so the very basis of the iinpugned order cannot be sustained and consequentiy the impugned order is required to be set aside. We accordingly do so." in the case or Yudhistir Mohanand jSupra) also, it has been heid by the High Court of Orissa that provisions of Section 97 CrPC could not be invoked so as to compel the father to produce the chiid before the Magistrate. In holding so, the deciston of the High Court of iViadras in the case of K. Sarasu v. Senaodan. 1981 CRU, NOC 113 (Rfiad) has been reiied upon, wherein it was heid that if father takes away his own chiki from Uie custody of his own mo&ier, he ttiereby has not committed any offence because he is the natural guardian of ttie minor. it has also been heid that the question as to whether welfare of the chiid is to be with Uie mother or the father, is a matter to be decided in OMI Court and cannot be gone into in summary proceedings of Seetion 87 of the CrPC. ."^. 1 6. The submission of learned counsei for the respondent Uiat in the present case, appiicaijon under Section 6 read with Section 10 ofths Hindu Minortty and Guardianship Act ofthe petitioner No.1 having been rejected, if he kespschiidren with him, it would be a case of commission of offence and iherefore proceedings under Section 97 could be drawn, cannot be accepted. True it is, that the petitioner No.1 lost in the proceedings before the Famiiy Court and Uie appiication for custody of the chiidren was rejected. However, even 'sf tiiereafter, : -^.^.; -..& ~"^. •.; ?3.s*?r'%>,, ^ •i ^•^A^'k'.A^i ^ sl 'cts'h^^"~ fM ^git- i3» SStfi Seepi; he continues with the custody of the chiidren, it cannot be said that he has committed an offence. it wouid be always open for Uie respondent to take recourse to appropriate civii proceedings for the custody of the children. Fuither submission of iearned counsei for the respondent is that as the appiication under Section 97 CrPC was flied not oniy against the petittoner No.1- Chandrasekhar Girolkar but aiso against his brother -Dinkar Rao, the Maglstrate could weii proceed against Dinkar Rao and there is no such bar. The said arguments are onty hypothetical, as in the present case, the search warrant has been issued against the father i.e. Chandrasekhar Girolkar. Therefore, this Court is catled upon to see whettier proceedings under Section 97 CrPC eould be drawn against the father of the children. Therefore, ttie objection that the peBBoner No-2-Dinkar Rao has no locus to fiie instant petiUon nor revision petition, is not required to be decided because the search warrant has been issued against the petitioner No.1 who is the petitioner before this Court. 7. As an upshot of discussion as above, the search warrant issued by the Sub-Divisionat Magisfrate on 14/07/2010 is cteariy illegal and wittiout jurisdic-tion. ConsequenUy, the order passed in the revision is set aside and the proceedings drawn by the Sub-Divisional lyiagistrate under Section 97 CiPC against the petitioner No.1 are also quashed. Manindra Mohaa Shrivastava i. •:>s. 1^>-