KIRAN CHAKRAVARTI Vs. KALMVIEER GULATI

JUDGEMENT

(1.) By this application filed u/s 482 Cr. P.C., the applicants seek quashing of criminal proceedings pending before Ku. Sushama Khosla, Judicial Magistrate, First Class, Jabalpur for offences under sections 441 & 336/H I.P.C.

(2.) The dispute between the parties relate to the minor grand son of applicant No. 1. This applicant was married to one Shri Yashpal Galati, Second son of non-applicant No. 1, who unfortunately died in a Scooter accident on 9.9.1981. The child was born on 2 1.9.81. However the applicant No. 1 remarried in October, 1983 with the applicant No. 2 Dilip Chakravarty and is now his legally married wife. Applicant No.3 is the father of applicant No. 1. It appears that the minor child was given on adoption to the elder brother of the deceased husband of applicant No. 1, Devendrapal Gulati by a registered adoption-deed dated 29.11.1984. Devendrapal Gulati is a resident of USA and had expressed the willingness to adopt the son of his younger brother because he himself has no male child. It, however, appears that the said Shri Devendrapal Gulati could not take the child with him to USA because of immigration formalities and left him with his father Karamveer Gulati, non-applicant No. 1. It is alleged by the non-applicant No. 1 that on 14.5.1985 at about 8.30 P.M., the child was taken away by the applicants from his house. A report of the incident was lodged with the police at Gorakhpur, which registered a case under sections 48 & 363 IPC against the applicant No. 1. The minor child was taken in police custody during investigation. By an order, dated 6.5.1985, the child was, however, given in custody to the applicant No. 1 and is with her since then. Acting on the report, the police had presented the challan and the Court has framed charges against the three applicants, as aforesaid. The present application is filed to quash those proceedings.

(3.) Having heard the learned counsel for both the parties, this Court is of the opinion that this application must be allowed and proceedings quashed, The dispute between the parties is about the custody of the minor child. The complainant claims that the child, having been given in adoption to his elder son, was in his lawful custody. The applicant No. 1, however, challenges the adoption and has filed a civil suit, which is pending. Because of the pendency of the civil suit, it will not be proper for this Court to decide whether the adoption was legal or illegal. Suffice it to say that purpose of criminal proceedings is not to put a party to civil litigation to a disadvantage out position. The applicant No. 1 in admittedly the mother of the child and that was the reason wby the child and that was the reason wby the child has been given in her custody by the Court. Whether this applicant has lost her right of guardianship over the child will depend on the legality and validity of the adoption. Permitting prosecution of these applicants at this stage would amount to putting them in a dis-actvantageous position, causing harassment. This would certainly amount to misuse and abuse of the process of the Court. This, neither in the purpose of prosecution nor is otherwise in wider interest of jurtice.