1 wp.534-2011 acd IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 534 OF 2011 Dr. Sanjay Rajshekhar Magavi ..Petitioner. Vs. Dr. Smita Sanjay Magavi & Anr. ..Respondents. ----- Mr. V. V. Purwant, for the Petitioner. Mr.unil V. Warad, for Respondent no.1. Mr. Y.S. Shinde, APP for the State. ---- CORAM: B. H. MARLAPALLE & U.D. SALVI, JJ. AUGUST 08, 2011. P.C.: 1. We have heard Mr. Purvant, the learned counsel for the petitioner as well as Mr. Warad, the learned counsel for respondent no.1. Mr. Shinde, the learned APP appears for the State of Maharashtra. 2. This Petition filed under Article 226 of the Constitution of India read with Section 482 of the Cr. P.C., prays for quashing FIR no.51 2 wp.534-2011 of 2011 registered with the Sadarbazar Police Station at Solapur for the offence punishable under Section 363 read with Section 34 of IPC. 3 The petitioner and respondent no.1 are both doctors by profession, and they were married on 10.11.1995, and from the said wedlock, they begot daughter Richa on 26.5.1998. Due to some matrimonial disputes, respondent no.1 left the matrimonial home on 26.3.2007 along with her daughter and started staying with her parents at Solapur. She filed a complaint with the Fauzdar Chawdi Police Station for the offences punishable under Sections 498A and 363 of IPC against the husband and it came to be registered as FIR no.227 of 2007. The petitioner filed a private complaint registered as P.C. no.284 of 2007 against respondent no.1 before the court at Hubli for the offences punishable under Sections 497, 442 and 506 of IPC. Pursuant to the order passed under Section 156(3) of the Cr.P.C., the Police investigated into the complaint and submitted a B-summary report. The petitioner submitted an application on 16.6.2008 withdrawing the complaint on the ground of compromise between the spouses and hence the complaint was dismissed as withdrawn. 3 wp.534-2011 4. The petitioner filed Guardians and Wards Case no.24 of 2007 before the court of the First Additional Civil Judge (Senior Div.) at Hubli, under Section 10 of the Guardians and Wards Act, 1890 so as to appoint him as the guardian of the daughter Richa and grant him Richa’s custody. The said application was allowed on 15.1.2010. In the meanwhile, by way of an interlocutory order dated 16.6.2007 passed in G & W Case no.24 of 2007, Richa’s custody was granted to respondent no.1, and therefore, Richa’s custody remained with her natural mother. Though, respondent no. 1 had engaged an Advocate in G & W Case no.24 of 2007, the Advocate subsequently appears to have withdrawn from the said case, and finally on 15.1.2010 when the said application was allowed, she was not represented before the court. 5. It is not the case of the petitioner that the order dated 15.1.2010 was either forwarded by the court or by him to respondent no.1 at any point of time prior to 15.2.2011. However, on 15.2.2011 while Richa was going to her school at about 7.00 a.m. at Solapur, the petitioner along with his accomplices intercepted her rickshaw, dragged her out of the rickshaw and took her away in a white Maruti car. It is also the case of 4 wp.534-2011 respondent no.1 that while taking Richa away forcibly, the petitioner threw at the spot some paperers which were collected by the rickshaw driver and handed over to the school principal. These documents were a copy of the order dated 15.1.2010, and a photograph of Richa with her father- petitioner, and this was how respondent no.1 suspected that the petitioner had taken away Richa by kidnapping her. 6. An appeal bearing no. MFA no.21264 of 2011 came to be filed by respondent no.1 before the Hubli Bench of the Karnataka High Court against the order dated 15.1.2010 passed by the First Addl. Civil Judge (Senior Div), Hubli in G & W Case no.24 of 2007, and on 11.3.2011, the said appeal was admitted, and Richa’s custody was restored to respondent no.1. The petitioner has complied with the order dated 11.3.2011 passed by the Karnataka High Court. 7. It was submitted by Shri Purvant, the learned counsel for the petitioner that petitioner is a natural father of Richa, and if he has taken away her from Solapur on 15.2.2011, it would not amount to an offence punishable under Section 363 of IPC. In support of this contention, Mr. Purvant has relied upon the decision in the case of Chandrakala A. Menon 5 wp.534-2011 (Mrs) & Anr. Vs. Vipin Menon (Capt) & Anr. [(1993) 2 Supreme Court Cases 6]. 8. We have perused the order passed in Chandrakala A. Menon’s case (Supra), and also perused the statements of respondent no.1 recorded while registering CR no.51 of 2011 at Sadarbazar Police Station, Solapur. When the petitioner had succeeded in G & W Case no.24 of 2007 as per the order dated 15.1.2010, he had not followed the procedure for execution of the said order, and obviously after about thirteen months, he had forcibly taken the custody of Richa while she was going to her school at about 7.00 a.m. In these peculiar facts, the order passed in Chandrakala Menon’s case (Supra) not applicable. 9. At this stage we are not required to consider whether this act of the petitioner would be an offence punishable under Section 363 of IPC. As of now the Police are is required to investigate into the complaint lodged by respondent no.1 and the complaint in its totality which also includes threats on telephone etc. prior to the incident. During the course of the investigation it is for the Investigating Officer to decide whether any case, on the basis of evidence/material, for filing the final report for an 6 wp.534-2011 offence punishable under Section 363 of IPC, is made out. We are only required to consider whether a prima facie case for investigation into the complaint has been made out, and we are not required to consider whether the material on record prove such charge as of now. 10. Hence, there is no case made out to invoke the inherent powers of this court under Section 482 of Cr. P.C. in this Petition filed under Article 226 of the Constitution of India, so as to quash and set aside CR no.51 of 2011. The Petition, therefore, must fail at the threshold, and the same is hereby dismissed. 11. In terms of the order passed by this court on 24.2.2011, the petitioner is hereby directed to pay an amount of Rs.25,000/- by way of legal expenses to respondent no.1, and the said amount shall be deposited in the court of Chief Judicial Magistrate at Solapur, and respondent no.1 shall be refunded the said amount on her application. The said amount be deposited within two weeks from today. (U.D. SALVI, J.) (B. H. MARLAPALLE, J.) 7 wp.534-2011