SITARAM BALAI Vs. STATE OF RAJASTHAN AND OTHERS.

JUDGEMENT

(1.) This petition for habeas corpus has been filed by petitioner Sitaram Balai alleging that respondent no.4 Omprakash Balai, who is his neighbour, developed illicit relations with his wife and used to secretly talk to her on cellphone. His wife went away with him. She has also taken away his two children, namely, Vikas and Monika. Petitioner's younger brother lodged a report about the incident but the police, in stead of registering regular first information report, simply registered missing person report at Police Station Renwal, Jaipur (Rural). Police have not taken any steps to recover them.

(2.) If the petitioner's wife developed illicit relation with respondent no.4 Omprakash Balai and has eloped with him, it cannot be matter of habeas corpus. Facts clearly show that petitioner's grievance actually is about the inaction and failure on the part of the police to recover and bring his wife and two children, back to him. In so far as wife of the petitioner is concerned, petitioner can avail his remedy under Sections 97 and 98 of the Code of Criminal Procedure. In the scheme of Crimial P.C., we find that the Magistrate has all the competence to deal with the matters of the present nature, which are otherwise being brought to this Court in the shape of Habeas Corpus.

(3.) We are not inclined to entertain the present matter in the scope of writ of habeas corpus because the brother of petitioner has already filed a missing person report with specific allegation against respondent no.4 Omprakash Balai and police is presently undertaking investigation. Though in appropriate case, this Court, despite lodgment of missing report/First Information Report, can still entertain a habeas corpus petition. But, we do not find any such extraordinary reason to allow this matter to be agitated by way of habeas corpus petition. With regard to custody of minor children whom also the petitioner's wife has taken away with herself, the petitioner can approach the competent court for recovery of the custody of the children, and that Court shall pass appropriate order keeping in view the welfare of the children because for the present if they are with their mother, their custody cannot be said to be illegal with the mother, she being natural guardian.