Jammu & Kashmir High Court
Waqar Younis vs Union Territory Of J And K Th Ssp ... on 25 March, 2021
Serial No. 292
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Crl R No. 24/2020
CrlM No. 1688/2020
Waqar Younis ...Appellant(s)
Through:- Mr. Gagan Basotra, Sr. Advocate with
Ms. Navdeep Kour, Advocate.
v/s
Union Territory of J and K Th SSP Rajouri and others ....Respondent(s)
Through:- Mr. Muzaffar Iqbal Khan, Advocate with
Mr. M. Zulkernain Chowdhary, Advocate
for R-3
Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
1. Order dated 10.12.2020 passed by Chief Judicial Magistrate, Rajouri,
is being questioned by the petitioner where under the Magistrate while
disposing of the application filed under Section 97 of Cr.P.C maintained by
the applicant/ respondent No.3 herein, has directed the non-applicant -
petitioner herein, to hand over the child to the applicant/respondent No. 3
herein, within a period of three days in presence of SHO Police Station
Women Cell Rajouri. In the event of his failure, SHO Police Station Women
Cell Rajouri has been directed to recover the child from the non-applicant-
petitioner herein and hand over to the applicant (respondent No.3 herein).
2. The order impugned is questioned on the premise that the petitioner
and respondent No. 3 had married on 08.05.2016, in accordance with
Muslim customs and rites and out of the said wedlock minor, namely, Zaiva
Lone aged 3 years was born.
3. It is being contended that from the very inception of the marriage the
parties (petitioner and the respondent No.3) have had conflicts and disputes
in their matrimonial life and that the respondent No.3 left the matrimonial
fold on 17.11.2020, leaving the minor child with the non-applicant petitioner
herein.
4. It is being contended that the minor child is suffering from an ailment
and is being regularly taken to Chandigarh for treatment. It is being further
contended that respondent No.3 herein, became vindictive against the
petitioner and as a consequence whereof, filed application under Section 97
Cr. P.C before the Court below seeking custody of the minor child on
multiple grounds. It is being stated that the Court below without giving a
reasonable opportunity to the petitioner herein inasmuch, as providing any
chance to file objections to the aforesaid application passed the impugned
order.
5. The order is being questioned inter alia amongst others on the
grounds that Court below has no jurisdiction to pass such kind of order
under Section 97 of Cr. P.C and that the Court below exceeded its
jurisdiction. The impugned order is stated to be contrary to law as held
various judgments of the Apex court and this court.
6. Upon coming to the matter before this Court initially on 16.12.2020
and 21.12.2020, and upon joint submission of the learned counsel for the
parties that the marriage inter se the petitioner and respondent No. 3 is intact
and that there is still a scope of reconciliation between the parties, this Court
directed as an interim measure to handing over of the custody of the minor
child to respondent No. 3 on 23.12.2020 till 27.12.2020.
7. In terms of a subsequent order passed on 18.02.2021, this Court again
directed the petitioner herein, to allow the respondent No. 3 herein, to
accompany him while the child is being taken to Chandigarh for treatment,
however, the learned counsel for the respondent No. 3 would contend that
the order dated 18.02.2021 was not carried out by the petitioner and instead
the petitioner has pronounced two consecutive divorces upon respondent No.
3.
8. Learned counsel for the respondent No. 3 would submit that in view
of the pronouncement of the divorce by the petitioner upon respondent No.
3, the exercise undertaken by this Court earlier has lost its significance and
remotely providing any chance for reconciliation between the parties.
9. Learned counsel for the parties insisted for consideration of the matter
on its merits and it is on account of the said joint submissions made by the
learned counsel for the parties that the matter was taken up for consideration
today.
10. Heard learned counsel for the parties and peruse the record.
11. Learned counsel for the petitioner herein, reiterated the submissions in
line with the contentions urged in the petition, where as learned counsel for
the respondent No. 3 herein, would contend that the petition is misconceived
and that the court below passed the order impugned validly.
12. The moot point for consideration of this Court, is that as to whether
the impugned order passed by the Court below could have been passed in the
facts and circumstance of the case in respect of custody of the minor child,
admittedly in the custody of the petitioner (father) and further as to whether
the Court below could have invoked the provisions of Section 97 of Cr. P.C
and as such, directed handing over of the custody of the minor child to
respondent No. 3.
13. Before proceedings to deal with the aforesaid point it would be
appropriate to refer to Section 97 of Code of Criminal Procedure:-
"97. Search for persons wrongfully confined.- If any
District Magistrate, Sub-Divisional Magistrate or
Magistrate of the first class has reason to believe that any
person is confined under such circumstances that the
confinement amounts to an offence, he may issue a
search-warrant, and the person to whom such warrant is
directed may search for the person so confined, and such
search shall be made in accordance therewith, and the
person, if found, shall be immediately taken before a
Magistrate, who shall make such order as in the
circumstances of the case seems proper."
14. A bare perusal of the aforesaid provision would manifestly
demonstrate that power under Section 97 can be invoked by a Magistrate
only if he has reason to believe that any person is confined and that the
confinement amounts to an offence whereupon the Magistrate may issue a
search warrant thereof for search of the person confined. The expression
reason to believe has to be based upon subjective satisfaction of the
Magistrate.
15. Perusal of the impugned order reveals that no such satisfaction is
recorded by the Court below in this regard least that the person of the minor
is under confinement while being in custody of the father and that the said
confinement amounts to an offence. The Magistrate has completely
overlooked this essential pre-requisite contained in Section 97 of Cr. P.C.
16. The law is no more res integra on the subject and there has been a
long line of decisions delivered by the Hon'ble Apex Court as well as by this
Court as to whether provisions of Section 97 Cr.PC could be invoked for
securing the custody of the minor child by either of the parents or for change
of the said custody. The consistent view of the Court has been that for
securing custody of child by either of the parents provision of Section 97
Cr.PC could not be invoked fundamentally on the ground that the child with
either of the parent could not be said to be under illegal confinement.
17. The judgments referred to by learned counsel for the respondent No.
3 reported in 1983 AIR (J&K) 70 titled as "Mohd. Ramzan Magray Vs.
Taja and others" in support of his case per se is quite distinguishable. The
issue in the said judgment related to the determination of custody of a child
in proceedings filed under Guardian and Wards Act which had landed before
the High Court in an appeal where under this Court had declared mother to
be the Guardian of the minor child and consequently entitled to the custody
and also having held that in the event, the guardianship and custody is
declined and refused by the father, in that, even recourse to the provision to
the Section 100 Cr. P.C now Section 97 be taken.
18. Further, the judgment referred to by the learned counsel for the
respondent No.3 reported in 2011 1 JKJ 937 titled as "Bashir Ahmad Mir
and others Vs. Rubeena Akhter" also does not lend any support to the
respondent No.3 herein, in that the facts of the case had been quite
distinguishable from the case in hand.
19. Having regard to what has been considered, observed and analyzed
herein above the Court below has passed the impugned order mechanically
without appreciating the controversy in its true and correct perspective
inasmuch, as overlooking the purport and spirit of Section 97 Cr. P.C.
20. The impugned order (supra) thus, does not sustain and is, accordingly,
set aside.
21. It is however, made clear that the decision of this Court rendered in
the instant proceedings shall not stand in the way of respondent No.3 herein,
to claim the custody of the child in an appropriate proceedings before an
appropriate Court.
Disposed of.
(JAVED IQBAL WANI)
JUDGE
Jammu
25.03.2021
Renu
RENU BALA
2021.04.07 11:02
I attest to the accuracy and
integrity of this document
