JAISHREE TIWARI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The instant miscellaneous petition has been filed by the petitioner against the order dated 15-5-2012 passed by the learned Addl. District Magistrate, Nagour whereby in proceedings under Section 97 of the Cr. P. C. initiated by the respondent No. 2, the learned Executive Magistrate has directed the custody of the petitioner and the respondent No.2's son to be handed over to the respondent No.2.

(2.) Succinctly stated the facts relevant for the disposal of the miscellaneous petition are that the respondent No.2 filed an application under Section 97 of the Cr. P. C. in the Court of S. D. M. Merta, on 7-5-2012. The allegation in the application was that the applicant's son Devansh aged 8 years was kidnapped by the petitioner and Santosh Kumar. The S. D. M. Merta issued a search warrant on 7-5-2012 to the S. H. O. Padukallan for search of the child Devansh and fixed the next date for 21-5-2012. Thereafter it appears that the S. H. O. Padukallan recovered the child from Hyderabad where he was living with the mother, the petitioner herein. For reasons unknown, the matter was placed in the Court of A. D. M. Nagour on 15-5-2012 and the child was produced before him on that day. It is very surprising to note that proceedings of the S. D. M. Merta reveals that the S. D. M. passed an order of issuance of search warrant on 7-5-2012 and the file was never placed in his Court before the next date i.e. 21-5-2012. Be that as it may, as stated above, the file was placed before A. D. M. Nagour on 15-5-2012, he passed an order on that very day that the custody of the child Devansh be given to his natural guardian i.e. the father Ramkishore Tiwari. However, after passing of the order the child started crying and did not leave his mother on which the A. D. M. kept his order in abeyance for 15 days and directed that the mother shall not leave Rajasthan for a period of 15 days. The order dated 15-5-2012 passed by the A. D. M. Nagour is under challenge in the instant miscellaneous petition under Section 482 Cr. P. C. filed by the mother Smt. Jaishree.

(3.) Counsel for the petitioner submits that the Executive Magistrate has no powers to issue search warrant particularly when no ingredients of any offence of wrongful confinement is disclosed from the complaint. He submits that the mother cannot be said to be holding illegal custody of her own child and despite this admitted situation on record, firstly search warrant was illegally issued for producing the child before the Executive Court and thereafter the Executive Court without any justification and without having any jurisdiction passed an order that the custody of the child be handed over to the father. Placing reliance on the decision of the Apex Court in the case of Ramesh v. Smt. Laxmi Bai, 1999 CrLJ 5023, learned counsel submits that the Executive Magistrate has no powers to pass an order under Section 97 Cr. P. C. when the case is of custody of child and the dispute is between the natural guardians. Learned counsel thus submits that the order impugned deserves to be quashed and the petitioner be declared to be entitled to hold custody of the child as she is his natural guardian.