IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT: HON'BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.653 of 2004 Date: 26-07-2011 Between: Katta RatnamJ S/o.Venkat Rajaiah … Petitioner AND State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad and another … Respondents HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.653 of 2004 JUDGMENT: This Criminal Revision Case is directed against the issuance of search warrant in Criminal M.P.No.383 of 2004, dated 26-03-2004, on the file of the Court of Judicial Magistrate of First Class, Nirmal, Adilabad District, for securing the child, by name, Sai Kumar, son of the 2nd respondent and the daughter of the revision petitioner, from the custody of the revision petitioner on the ground that the child was taken away by the revision petitioner illegally, while he was in the custody of the parents of the 2nd respondent. 2. It is contended on behalf of the revision petitioner that the child has been in his custody only and there was a case against the 2nd respondent under Section 304-B IPC on the ground that he involved in harassing his daughter, namely, Swapna, (i.e. wife of the 2nd respondent), by reason of which she committed suicide and the child was never in the custody of the 2nd respondent and on false grounds, the search warrant was obtained and on the other hand, he could have taken the recourse under Section 7 of the Guardians And Wards Act, 1890 (for short ‘the Act’). 3. Now the point that arises for consideration is whether there are substantial grounds to allow this revision. 4. The brief facts of the case are as follows: The marriage of the 2nd respondent and the daughter of the revision petitioner, namely, Swapna (hereinafter referred to as ‘the deceased’) was performed in the year 2000 and they begot a male child, namely Sai Kumar, out of their wedlock. The 2nd respondent harassed and tortured the deceased for additional dowry, due to which she committed suicide. Thereafter, the police registered the case against the 2nd respondent for the offences punishable under Sections 498-A and 304-B IPC and the accused was arrested and sent for judicial remand and thereafter, he obtained bail. The maternal grand father of the boy i.e. the revision petitioner herein, had taken the lawful custody of the child. The 2nd respondent is facing prosecution for the offences alleged against him. The 2nd respondent filed Criminal M.P. No.383 of 2004 before the Judicial Magistrate of First Class, Nirmal under Section 97 Cr.P.C. for search warrant and the learned Magistrate allowed the petition and issued the search warrant appointing an Advocate Commissioner authorizing to search, secure and produce the minor boy before the Court and aggrieved by the same the present revision is filed. 5. It is pertinent to note here that as per the record, the 2nd respondent was being tried for offences punishable under Sections 498-A and 304-B IPC and Sections 3 and 4 of the Dowry Prohibition Act in Crime No.162 of 2003 on the file of Dandepalli Police Station before the Judicial Magistrate of First Class, Luxettipet on the ground that he involved in harassing his wife, by reason of which she committed suicide. There is a question as to whether the child was in the custody of the 2nd respondent or has been in the custody of the revision petitioner, who happened to be his maternal grand father. It is a well established principle of law that interest of minor is paramount in cases of this nature. When there are such controversies, it is not tenable to issue search warrants in matrimonial cases without actually ascertaining relevant factors prima facie. The learned Magistrate, therefore, while issuing the search warrant should have taken into consideration the relationship of the parties and the pendency of the said criminal cases against the 2nd respondent subject to feasibility. Suppose the custody of the child with the father is not advisable, taking away him from the custody of his grand father may amount to causing lot of injustice to the minor. Further, under Section 7 of the Guardian and Wards Act, the 2nd respondent has to take necessary steps to approach the concerned Court for the custody of the child, for which no evidence is placed before the Court, instead of approaching the Magistrate Court, for the issuance of the search warrant, for which an adverse inference is to be drawn. Further, long time has been lapsed from the date of issuance of the search warrant and in my considered opinion no useful purpose would be served by enforcing the search warrant now. In case the claim of the 2nd respondent is true, definitely, he would have taken recourse under Section 7 of the Act. 6. For the reasons stated above, I am of the opinion that there are merits in this revision case, whereas issuance of search warrant is not proper and consequently, the revision is allowed and the order of the learned Magistrate is set aside. _____________________________ JUSTICE G. KRISHNA MOHAN REDDY July 21, 2011. KTL