SURESH KUMAR SWAMI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This habeas corpus petition has been filed by one Suresh Kumar Swami, inter-alia, with prayer that appropriate direction be issued to respondent authorities to produce his daughter named Babita before the court and handover her custody to the petitioner.

(2.) Mr. Sanjay Mehla, learned counsel for petitioner submitted that petitioner is resident of village Badangarh, Via Chirawa, Police Station Mandrela, District Jhunjhunu. His daughter Babita at the relevant time was pursuing the computer course of RSCIT. His son Vijendra Kumar was engaged in the business of selling SIM Cards of various companies at Chirawa, District Jhunjhunu. Respondent no.7 Nagendra Sharma is a friend of his son. He used to frequently visit their home. On 05.07.2016 when the petitioner and his wife went to Jhunjhunu for attending wedding ceremony in his relation and his son had gone to Chirawa on his work, their daughter Babita was at home, and when they returned back at 7.00 PM of that day, they did not find their daughter at home. On enquiry, brother of petitioner informed him that respondent no.7 Nagendra Sharma came to their house at about 1.00 PM on that date in a white car and he took Babita with him. The petitioner lodged missing person report being MPR No.5/2016 on 07.07.2016 with the Police Station Mandrela, however, the police is not taking any step to recover his daughter. Petitioner apprehends that his daughter has been kidnapped by respondent no.7 and presently she is in his illegal custody. The respondent no.7 is not a man of good character. It is submitted that the police be directed to recover the daughter of the petitioner and to handover her custody to him.

(3.) On the facts of the case, we are not persuaded to entertain this matter as a writ petition of habeas corpus. However, in our considered view, remedy of the petitioner lies in approaching the concerned Magistrate having jurisdiction of Police Station Mandrela by filing an application under section 98 of the Code of Criminal Procedure. Section 98 of the Cr.P.C. provides that upon complaint made on oath of the abduction or unlawful detention of a woman, or a female child under the age of eighteen years, for any unlawful purpose, a District Magistrate, Sub-divisional Magistrate or Magistrate of the first class may make an order for the immediate restoration of such woman to her liberty, or of such female child to her husband, parent, guardian or other person having the lawful charge of such child, and may compel compliance with such order, using such force as may be necessary.