Bapu S/O Kisan Ladkat, Suresh S/O ... vs The State Of Maharashtra, R.N. ...
2006 Latest Caselaw 996 Bom

JUDGMENT

J.H. Bhatia, J.

1. Heard.

2. According to the petitioners, petitioner No. l Bapu and Respondent No. 3 Kausabai were married on 28.4.1980 and out of wedlock they have i.e. two sons and one daughter. Younger son namely Vikas was studying in 7th standard. According to the petitioners, the relations between the petitioner No. l and his wife were strained and therefore, they were living separately from each other for some time. While Vikas was in custody of the petitioner No. l, other two children were living with Respondent No. 3. Vikas was got admitted in a primary school at Pargaon by the petitioner No. l. However, some times in the month of November 1995, Respondent No. 3 removed the name of Vikas from that School and got him admitted in S.O.S. Bal-Gram Hostel at Latur. On 8.l.1996 the petitioner No. l filed Criminal Misc. Application No. 3/96 Under Section 97 of Cr.P.C. for search warrant for Vikas at S.O.S. Bal-Gram Hostel, Latur. On the same day learned J.M.F.C. Shrigonda, was pleased to issue search warrant for search of the boy. It was addressed to P.S.O. Latur Police Station as well as Shrigonda Police Station. According to the petitioners, on 9.l.1996, petitioner No. l went to Latur Police Station to handover the search warrant to the Police and to seek assistance of the Police for search of the boy. However, instead of providing any assistance to him and instead of making any search for the boy, the Police arrested the petitioner No. l and his two companions who are petitioners Nos. 2 and 3 in Crime No. 7/96 Under Section 363, read with Section 34 of I.P.C. on the allegations that the petitioners had kidnapped Vikas from the lawful custody of the Director of S.O.S. Bal-Gram Hostel, Latur. They were produced before the Magistrate and Police custody was sought. However, police custody was refused and all the petitioners were remanded to Magisterial custody.

3. By the present petition, the petitioners seek to quash and set aside the F.I.R. lodged in Crime No. 7/1996 at Latur Police Station and further proceedings therein. They also seek directions to Respondent No. 2 Director of S.O.S. Bal-Gram Hostel to handover custody of Vikas to the petitioner No. l.

4. On behalf of the Respondents, no affidavit-in-reply is filed.

5. There is no dispute that Vikas is son of petitioner No. l and Respondent No. 3. As per School Leaving Certificate from Z.P. Primary School, Pargaon, Tq.Shrigonda, date of birth of Vikas is 22.9.1983. He was admitted in the said school on 15.6.1993 and on 25.ll.1995 he left the school and transfer certificate was issued on the request of his guardian. At that time he was student of 7th standard. According to the petitioner, Respondent No. 3 had got the child removed from that school and got him admitted in Bal-Gram Hostel, Latur. There is no dispute that petitioner No. l had filed Criminal Misc. Application NO.3/96 before J.M.F.C. Shrigonda with a request to issue search warrant Under Section 97 Cr.P.C. for search and production of Vikas and on the same day search warrant was also issued by the learned Magistrate. The order dated 15.l.1996 passed by J.M.F.C. Shrigonda, in Cri. Misc.Application No. 3/96 reveals that on 9.l.1996 merely on telephonic message from the Director of S.O.S. Bal-Gram hostel, police had registered Crime No. 7/96 Under Section 363 I.P.C. against some unknown person. Till that time no written report was lodged by the said Director i.e. Respondent No. 2. It appears that written report was submitted on 14.l.1996. When petitioner No. l alongwith his two companions i.e. petitioner Nos. 2 and 3 went to Latur Police Station to hand-over the search warrant issued by J.M.F.C. Shrigonda, instead of taking any action on the basis of that search warrant, the P.S.O. immediately jumped to the conclusion that the petitioners were the persons who had committed offence of kidnapping and he arrested them. He did not even bother to take cognizance of the search warrant issued by the Magistrate and to find out that the petitioner No. l is father of the boy.

6. Kidnapping is defined in Section 361 I.P.C. as follows :

361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception. - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

From this it is clear that whoever takes or entices a minor under 16 years of age if a male or under 18 years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to have committed the offence of kidnapping from lawful guardianship. Naturally the next question arises who is natural guardian of a minor. Under Section 4(a) of Hindu Minority and Guardianship Act, 1956, a minor means a person who has not completed the age of 18 years and under Clause (b) guardian means a person having care of the person of a minor or of his property or of both his person and property and includes the natural guardian. Section 6 of the Hindu Minority and Guardianship Act provides that natural guardian of a Hindu minor in the case of a boy or an unmarried girl is father and after him the mother. However, it provides that custody of a minor who has not completed the age of 5 years shall ordinarily be with the mother. Difference between the natural guardianship and custody is well understood. Father of a Hindu minor is guardian though, mother may be in custody or she may be entitled to custody upto certain age. In the present case Vikas was aged about 12 years when the alleged incident occurred. Therefore, he was minor and as such in view of the provisions of Section 6 of Hindu Minority and Guardianship Act, the petitioner, being father, was natural guardian of the boy. He was the lawful guardian of the child and he continued to be lawful guardian even when the boy was removed from Z.P. Primary school, Pargaon by taking transfer certificate by his mother. Explanation to Section 361 I.P.C. provides that the lawful guardian in the said Section include any person lawfully entrusted with the care or custody of such minor. It may be said that when Vikas was admitted in S.O.S. Bal-Gram hostel, he was for the time being be in custody of the Director of that Bal-gram hostel and in view of the explanation to Section 361 I.P.C. the said Director would be included within the definition of lawful guardian. As such said Director, while in lawful custody of the child, was also lawful guardian but his authority as lawful guardian would be valid against everybody except the natural guardian or lawful guardian. He could not challenge authority of the mother who had put the child in the school nor he could challenge the authority of the father who is natural guardian and as such the lawful guardian of the child. If anybody other than the petitioner No. l would have enticed or taken away the child from the said hostel without consent of the Director, such person could be said to have committed offence of kidnapping from lawful guardian Under Section 361 of I.P.C. However, this would not be applicable in case of lawful and natural guardian i.e. father. In view of the facts stated above, it is clear that the Police had without any justification and without any material and without considering the facts of the case had unnecessarily arrested the present petitioners as accused in Crime No. 7/1996. In view of the circumstances, it is clear that the offence could not be registered against petitioner No. l for the offence punishable Under Section 363 I.P.C. The petitioners Nos. 2 and 3 were his companions when he went to the Police Station, for seeking assistance for execution of the search warrant. They also could not be impleaded as accused in the said offence. Therefore, the action of Respondent No. 2 in lodging report against petitioner No. l and his companions and the action of P.S.O. Latur in registering offence against the petitioners was clearly illegal, unwarranted and unnecessary. It resulted in unnecessary arrest and detention of the present petitioners in the said crime. In the interest of justice, it will be necessary to quash and set aside the F.I.R. as well as registration of the offence and the further proceedings therein. As the said boy Vikas has already attained majority, there is no need to issue any directions in respect of his custody.

7. For the aforesaid reasons, the petition is allowed. The F.I.R. in Crime No. 7/96 registered by P.S.O. Latur Rural, is hereby quashed and set aside. Further proceedings therein are also quashed and set aside.

8. Rule made absolute accordingly.