IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 31ST MARCH 2011 / 10TH CHAITHRA 1933 Crl.MC.No. 753 of 2011() ------------------------------ AGAINST THE ORDER DATED 20/01/2011 IN IA.101/2011 IN OPGW.56/2011 of FAMILY COURT, NEDUMANGAD FIR IN CIRME NO.102/2011 OF VARKALA POLICE STATION .................... PETITIONER(S): ------------------- RAMAKRISHNAN BABU, S/O.RAMAKRISHNAN, AGED 50 YEARS, RESIDING AT ARAPURA VEEDU, MANJADIMOODU, CHIRAYINKIL, HAVING PERMANENTLY WORKING AT INOTECH L.L.C., DUBAI (M.D.) RAWATHA BUILDING, FLAT NO.301, AL-QUISAIS, DUBAI, U.A.E. BY ADVS. SMT.K.KUSUMAM SMT.V.SHYLAJA RESPONDENT(S): -------------------- 1. THE STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR. 2. BINDU BABU, D/O.DEVARAJAN, AGED 40 YEARS RESIDING AT `GANGA', MAITHANAM, VARKALA, PRESENTLY RESIDING AT ARAPURA VEEDU, MANJADIMOODU, CHIRAYINKIL. R1 BY PUBLIC PROSECUTOR SRI.K.J. MOHAMMED ANZAR R2 BY ADV. SRI.SAJU.S.A THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 31/03/2011, ALONG WITH CRMC NO. 856 OF 2011 CRMC NO. 869 OF 2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.Nos.753, 856 and 869 of 2011 --------------------------------------- Dated this 31st day of March, 2011 ORDER Basic dispute involved in these cases is a family feud between the estranged husband and wife fighting for custody of their children and over other demands. It appears that the first petitioner in the second and third of these criminal miscellaneous cases (petitioner in the first case), the husband was employed in Dubai. In the wedlock with the second respondent he has three children aged 18, 14 and 7½ years, respectively. First petitioner claimed, among other things that the youngest of the children was in his care and custody and while so, apprehending highhanded act from the second respondent and others he filed O.P(G & W). No.56 of 2011 against the second respondent and four others in Family Court, Nedumangad for a declaration that he is the legal guardian of his children, a mandatory injunction to direct the second respondent to return the daughter aged 14years to him, a decree granting permanent custody of the minor children to him to take them to Gulf and continue their education, a decree for prohibitory injunction to restrain the second respondent and others from taking away or removing the Crl.M.C.Nos.753, 856 and 869 of 2011 -: 2 :- minor children from the custody of the first petitioner and for other reliefs. Along with the said petition, first petitioner filed I.A.No.101 of 2011 for an order of injunction to restrain the second respondent and others from removing the youngest child, Divin from his custody. The Family Court by Annexure-A3, order dated 20.01.2011 allowed that application observing that on going through the records and hearing counsel for first petitioner there appeared to be a prima facie case in favour of first petitioner, that he is the head of the family residing at Dubai shortly before they came to India and that if the two children aged 14 years and 7½ years are not taken to Dubai to continue their education, that will spoil their career. The second respondent and others were restrained from making any attempt to remove Divin aged 7½ years from the lawful custody of first petitioner. Learned Judge also issued a direction to the second respondent and others to produce the daughter aged 14 years before Court on 25.01.2011 at 3p.m. According to the first petitioner, the said order was communicated to the second respondent on 22.01.2011 and thereafter the second respondent with the able assistance of the local Dy.S.P who is closely related to her moved swiftly and set the law in motion. She gave first information to the police on 23.01.2011 complaining that first Crl.M.C.Nos.753, 856 and 869 of 2011 -: 3 :- petitioner kidnapped Divin from her custody on 28.12.2010. Based on that the Varkala police registered Annexure-A1, FIR (in Crl.M.C.No.753 of 2011) on 23.01.2011 alleging that first petitioner has committed offence punishable under Sec.363 of the Indian Penal Code (for short, “the IPC”). It is the case of first petitioner that thereafter, there was a galore of complaints by the second respondent to the police and other authorities making false allegations and one such complaint led to Annexure-A1, FIR in Crime No.99 of 2011 of Chirayinkil police station (which is the subject mater of Crl.M.C.No.856 of 2011) for offences registered against petitioners in Crl.M.C.No.856 of 2011 for offences under Secs.451 and 294(b) r/w Sec.34 of the IPC and Sec.31(1) of the Protection of Women from Domestic Violence Act (for short, “the Act”). There, in Annexure-A1, FIS dated 11.02.2011 the second respondent stated that she had filed a complaint before the Magistrate concerned under provisions of the Act alleging that she was subjected to domestic violence and that she is prevented from residing in the “shared household”. It is stated that learned Magistrate passed an ex parte order on 08.02.2011. She informed the matter to the Chirayinkil police and came to the shared household on 11.02.2011 at about 10a.m getting the key of the house from the servant and started residence there with Crl.M.C.Nos.753, 856 and 869 of 2011 -: 4 :- her daughter and mother. Her case is that at about 12p.m that day, as instructed by the first petitioner, petitioners 2 onwards (in Crl.M.C.No.856 of 2011) trespassed into the house, tried to evict her and used obscene words at her. The police registered Annexure-A1, FIR on the strength of the said statement for offences above mentioned. 2. Things did not end there. The Varkala police registered Crime No.142 of 2011 for offences punishable under Secs.109, 419, 420, 511 of 363 r/w Sec.34 of the IPC. The second respondent gave first information on 29.01.2011 (learned counsel for second respondent stated that a complaint was preferred to the Chief Minister which was forwarded to the police for investigation, which is disputed by learned counsel for petitioners). She stated that one Fousia (second petitioner in Crl.M.C.No.869 of 2011) who is closely associated with the first petitioner, claiming to be a member of Kerala Women Commission and as if she wanted to settle the matter, along with her associates came to the school at Bangalore where the youngest two children were studying and made an attempt to kidnap the children as per the instruction of the first petitioner. On that information the Varkala police registered Crime No.142 of 2011 for offences above stated. Crl.M.C.Nos.753, 856 and 869 of 2011 -: 5 :- 3. Learned counsel for petitioners submit that all these cases are registered with atmost malafides, allegations are false and not sufficient to constitute any offence and much less the offence kidnapping since first petitioner is the lawful and natural guardian of all the children including the children who are allegedly kidnapped or attempted to be kidnapped. It is also contended that so far as Crime No.99 of 2011 of Chirayinkil police station is concerned the police have no authority to register a case under Sec.31(1) of the Act since it is for the Magistrate to decide whether there is any violation of the order passed by such Magistrate and though the Act states that the offences punishable under the said Act are cognizable the police have no authority to register a case except with the direction of the Magistrate concerned and on a finding that any of the petitioners has committed offences under the Act. It is also contended that petitioners 2 onwards in Crl.M.C.No.856 of 2011 are not parties before the learned Magistrate in the proceeding under the Act and hence no prosecution could lie against petitioners 2 onwards for the offences under Sec.31(1) of the Act. 4. Learned counsel for second respondent contended that cases are registered on the factual matrix supplied by the second respondent the correctness of which is to be decided Crl.M.C.Nos.753, 856 and 869 of 2011 -: 6 :- initially in the course of investigation and later by the Court concerned and hence it is not necessary to quash proceedings against petitioners. It is also contended by learned counsel that even if it is assumed that offences under Sec.363 of the IPC would not stand against first petitioner/father of the children, that would not absolve other petitioners from liability under the said offence. 5. Facts which are not in dispute are that so far as children born in the wedlock are concerned, petitioner in Crl.M.C.No.753 of 2011 who is the first petitioner in Crl.M.C.Nos.856 and 869 of 2011 was, is and continues to be the natural and legal guardian of his children until he is divested of that status in the manner known to law. In that case as the natural and legal guardian he is entitled in the normal course for custody of children subject of course to the decision that the Family Court may take having regard to the welfare of the children in the proceeding before the said Court. Sec.363 of the IPC provides the punishment for kidnapping. 'Kidnapping' are of two types, kidnapping from lawful guardianship (as defined in Sec.361 of the IPC) and kidnapping from India (as defined in Sec.360 of the IPC). In the present case I am concerned with Sec.361 of the IPC and that provision says that “whoever takes or Crl.M.C.Nos.753, 856 and 869 of 2011 -: 7 :- entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship”. I stated that until first petitioner is declared disqualified in the manner known to law, he is the natural and lawful guardian of his children. So far as it is so, the second petitioner is not the natural or lawful guardian. If that be so, alleged removal of minor children by the father who is the legal and natural guardian even from the custody of the mother does not amount to an offence under Sec.361 of the IPC. I draw support for that view from the decision in Capt. Vipin Menon Vs. The State of Karnataka and Anr. (1992 Crl.L.J. 3737). There, it was held that a father, in the absence of divestment of right of guardianship cannot be guilty of kidnapping the minor child even when the child is taken from the keeping of its mother. The Supreme Court dealt with the question in Chandrakala Menon and Anr. Vs. Vipin Menon and Anr. (1993(2) SCC 6) where also the same view was taken. There, the only difference was that the child was taken by the father from the custody of the maternal grandfather. Added to that is Annexure-A3 (Crl.M.C.No.753 of 2011) order Crl.M.C.Nos.753, 856 and 869 of 2011 -: 8 :- passed by the Family Court (Crl.M.C.No.753 of 2011) passed by the Family Court on 20.01.2011 restraining the second respondent and others from interfering with the custody of Divin with petitioner in Crl.M.C.No.753 of 2011 (first petitioner in the criminal miscellaneous cases). So much so, no offence under Sec.363 of the IPC is involved. Crime No.102 of 2011 registered by the Varkala police for offence under Sec.363 of the IPC does not have the backing of law, rather, is against law, cannot stand and is liable to be quashed. 6. In the light of the above finding, I shall consider Crl.M.C.No.869 of 2011 (involving Crime No.142 of 2011 of Varkala Police Station). There the offence under Sec.511 of 363 of the IPC is incorporated in Annexure-I, FIR on the allegation that second petitioners (and others) helped the first petitioner therein to take away the youngest two children aged 14 years and 7½ years. In the light of my finding that the father being the natural and legal guardian as is entitled to the custody of the minor children and hence is entitled to take them even from the care and custody of the mother, because somebody has helped the father in doing so, they cannot be said to have committed offence under Sec.511 of 363 of the IPC. Hence the offence incorporated in Crime No.142 of 2011 against petitioners therein Crl.M.C.Nos.753, 856 and 869 of 2011 -: 9 :- under Sec.511 of 363 of the IPC cannot stand and incorporation of that offence is liable to be quashed. 7. So far as rest of the allegation in Crime No.142 of 2011 referred to above is concerned, it is alleged that second petitioner therein (Fousia) personating herself as a member of the Women's Commission attempted to take away the child. There are also certain other allegations relating to offences under 109 and 420 r/w Sec.34 of the IPC are also involved. 8. On the factual situation, I do not intend to quash the FIR in that case for offences under 109, 419 and 420 of the IPC whether the said offences as stated in the said sections has been committed by any of the petitioners or anybody else in Crime No.142 of 2011 is a matter which the Investigating Officer has to primarily look into. 9. What remained is Crl.M.C.No.856 of 2011 where also, certain allegations regarding trespass, use of obscene words and violation of ex parte, interim order passed by the learned Magistrate are made. Those offences are incorporated in the light of Annexure-A1, FIS, statement of second respondent where such allegations are made. I do not think that on a dispute regarding factual aspect of the matter, this Court is required to interfere under Sec.482 of the Code. The Investigating Officer Crl.M.C.Nos.753, 856 and 869 of 2011 -: 10 :- shall look into whether he is entitled to register a case and submit final report for the offence under Sec.31(1) of the Act. Even if a final report for that offence is filed, the Magistrate concerned has to look into whether he could take cognizance of the said offence on a police report. 10. Petitioners have serious complaints about the then Dy.S.P, Attingal. According to the petitioners, it was with his active assistance that the second respondent has ventured to implead them in all these cases for no reason whatsoever. Learned counsel for petitioners referred to the speed with which the police acted in registering the cases and proceeding with the investigation and contended that it indicated the influenec of the second petitioner with the police. Learned Public Prosecutor denied the allegations personally made against the Dy.S.P concerned and submitted that the Dy.S.P has acted only in accordance with the law obeying the direction of his superior officer. These are not matters not required to be decided in this proceeding and hence I leave that matter there. However, learned Public Prosecutor has pointed out that the then Dy.S.P has been taken charge in some other place and the new incumbent has assumed charge. Crl.M.C.Nos.753, 856 and 869 of 2011 -: 11 :- 11. Now the investigation is being conducted/continued by the Sub Inspector, Varkala and Chirayinkil, respectively. In the light of the apprehension expressed by learned counsel for petitioners (though, I am not pronouncing verdict on that apprehension) it is appropriate that investigation of the cases is conducted by an officer senior in rank to the Sub Inspector of the respective stations. Learned Public Prosecutor has assured this Court that no police officer will harass petitioners and that they will act only in accordance with the procedure established by law. The submission is recorded and is sufficient to alley the apprehension of petitioners. Resultantly these petitions are disposed of in the following lines: (i) Crl.M.C.No.753 of 2011 is allowed. The FIR in Crime No.102 of 2011 of Varkala Police Station and all proceeding taken pursuant thereto against petitioner/accused are quashed. (ii) Crl.M.C.No.856 of 2011 is dismissed leaving it to the Investigating Officer to look into all aspects of the matter and ascertain whether any offence as alleged in Crime No.99 of 2011 of the Chirayinkil Police Station is made out and whether he is competent to register a case, investigate and submit final report with respect to the offence Crl.M.C.Nos.753, 856 and 869 of 2011 -: 12 :- alleged under Sec.31(1) of the Protection of Women from Domestic Violence Act. (iii) Crl.M.C.No.869 of 2011 is allowed in part to the extent that the FIR in Crime No.142 of 2011 of Varkala Police Station and all proceeding taken pursuant to it for the offence under Sec.511 of 363 r/w Sec.34 of the IPC will stand quashed against petitioners/accused. Whether, other offences alleged in Crime No.142 of 2011 are committed by the petitioners and/or others is a matter which the Investigating Officer has to look into. (iv) Having regard to the circumstances stated above, it is directed that investigation of Crime Nos.99 of 2011 of Chirayinkil Police Station and 142 of 2011 of Varkala Police Station shall be conducted/continued by an officer senior in rank to the Sub Inspector of the said stations and having jurisdiction over the matter. (v) The superintendent of Police, Rural, Thiruvananthapuram is directed to issue necessary orders for investigation as above directed within two weeks from the receipt of a copy of this order which shall be made available to that officer by the petitioners. (THOMAS P JOSEPH, JUDGE) Sbna/- /True Copy/ P.A to Judge