LAWS(ALL)-1978-8-31

OM PRAKASH SRIVASTAVA Vs. DUDH NATH SRIVASTAVA

Decided On August 23, 1978
OM PRAKASH SRIVASTAVA Appellant
V/S
DUDH NATH SRIVASTAVA Respondents

JUDGEMENT

(1.) THIS is an application under Sections 482 and 483 of the Code of Criminal Procedure. The applicants have prayed for quashing proceedings pending against them under Section 365 of the Indian Penal Code in the Court of Chief Judicial Magistrate, Sultanpur, opposite party no. 2. These proceedings arose from First Information Report filed by opposite party no. 1. The dispute between the parties centres round a minor boy Jai Prakash. In order to dispose off this application certain facts may be stated.

(2.) JAI Prakash, the minor boy is the son of applicant No. 1 Om Prakash Srivastava. Applicant no. 2 Sri Ram Srivastava is the father of Om Prakash Srivastava, that is he is the grand f ather of the minor. Sri Prakash, applicant no. 3, is brother of Om Prakash Srivastava, that is he is the uncle of the minor. Opposite party no. 1 Dudh Nath Srivastava is maternal grand father (Nana of the minor). On 23rd May, 1966 the First Information Report was lodged by opposite party no. I with the allegation that on 21st March, 1976 at 5 P. M. the applicant had kidnapped the minor boy JAI Prakash. In this First Information Report the age of the minor was disclosed as four years. It was asserted that the custody of the minor had been obtained through legal proceedings. On the basis of this First Information Report the police traced out the boy and handed over the minor to Smt. Usha Srivastava, the mother of the minor. Smt. Usha Srivastava is daughter of Dudh Nath Srivastava, opposite party no. 1. On 30th May, 1966 the police of Sultanpur submitted a final report to the Chief Judicial Magistrate, Sultanpur for acceptance. Before this final report could be accepted, an application was moved on 21st February, 1977 by opposite party no. 1 praying that the final report submitted by the police be not accepted. The learned Magistrate after going through the application moved on behalf of opposite party no. 1 and after perusing the case diary, ordered that the applicant be summoned for 27-4-1977. The applicant, instead of putting in appearance before Chief Judicial Magistrate approached this court by moving application under Sections 482 and 483 of the Code of Criminal Procedure.

(3.) TN support of the arguments that, being the natural guardian, father was; entitled to custody and therefore, not offence under Section 365 IPC could be made out against him, the learned counsel relied upon the following decisions :-The Empress v. R. P. Counsell, ILR 1882 (8) Calcutta 836 ; AIR 1938 Madras 656 in re Kannegati Chow- darayya. The learned counsel has cited both the above decisions on the assumption that his argument that the age of the minor given in the deposition of Smt. Usha Srivastava will be acceptable in these proceedings. In view of the fact that I have taken the view that the age disclosed in the said deposition is not final and there is still controversy between the parties as regards the correct age of the minor, both the authorities cited by the learned counsel cannot be of any assistance to him at this stage.