Abhishek Kashyap vs The State Of Bihar Through The ...
2023 Latest Caselaw 5271 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Criminal Writ Jurisdiction Case No.945 of 2023
            Arising Out of PS. Case No.-281 Year-2021 Thana- RAMPUR District- Gaya
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Abhishek Kashyap, Son of Binda Kumar Singh, Resident of Mohalla- Laxmi Nagar, P.S. -Rampur, District- Gaya

... ... Petitioner/s Versus

1. The State of Bihar through the Director General of Police, Bihar at Patna Bihar

2. The Senior Superintendent of Police, Patna, Distt- Patna Bihar

3. The Senior Superintendent of Police, Gaya, Distt- Gaya Bihar

4. The Officer-In-Charge, Vikram Distt- Patna Bihar

5. The Officer-In-Charge, Rampur, Distt- Gaya Bihar

6. Ranarajupratap Singh, Son of Late Ranaranvijay Singh, Resident of Village-

Karsakothi, PS- Bikram, Distt- Patna

7. Divitkashyap @ Aashu@ Anshu, Son of Abhishekkashyap, Resident of Village- Laxminagar PS- Rampur, Road No. 2, Distt- Gaya Currently under the custody of Ranarajupratap Singh, Son of Ranaranvijay Singh, Resident of Village- Karsakothi, PS. Bikram, Distt-Patna

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Sumit Kumar Singh, Advocate Mrs.Alka Singh, Advocate For the State : Mr. Md. Fazle Karim, AC to SC-1 For Respondent No. 6 : Mr. Avinash Kumar, Advocate Mr. Krishna Chandra, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH and HONOURABLE MR. JUSTICE NAWNEET KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH)

Date : 11-10-2023

Heard learned counsel for the parties.

2. Learned counsel for respondent No. 6 has not raised

any issue of maintainability of the present writ petition and has Patna High Court CR. WJC No.945 of 2023 dt.11-10-2023

submitted that he does not have any objection as regards

maintainability of the writ petition.

3. There are certain facts which are not in dispute. The

petitioner is the father of respondent No. 7, who is a male child.

Respondent No. 6 is the father-in-law of the petitioner and thus

maternal grandfather of respondent No. 7. The petitioner's wife

died of injuries sustained by her caused otherwise than under

normal circumstances, three and half years after the date of

marriage. A criminal case has been instituted against the

petitioner registered as Rampur (Gaya) P.S. Case No. 281 of

2021 for the offence punishable under Section 304-B/ 34 of the

Indian Penal Code in connection with which he was taken into

custody. The petitioner's son thereafter stayed in the family of

respondent No. 6. The petitioner is on bail since 17.10.2022. He

has filed this writ application seeking issuance of a writ in the

nature of writ of habeas corpus directing respondent No. 6 to

hand over the custody of respondent No. 7 to him.

4. Respondent No. 6 has entered appearance, filed

counter affidavit and has resisted the petitioner's case for

handing over the child through the process of writ proceeding. A

plea has been taken, inter alia, that the petitioner has statutory

alternative remedy of seeking custody of the child under Section Patna High Court CR. WJC No.945 of 2023 dt.11-10-2023

7(g) of the Family Courts Act, 1984.

5. Learned counsel appearing on behalf of the

petitioner has relied on the Supreme Court's decisions in case of

Tejaswini Gaud & Ors. vs. Shekhar Jagdish Prasad Tewari &

Ors. reported in (2019) 7 SCC 42 and Yashita vs. State of

Rajasthan & Ors. reported in (2020) 3 SCC 67 to contend that

this writ application in the nature of habeas corpus is

maintainable. He has submitted that the welfare of the child is of

paramount consideration in such matters and that respondent

No. 6 does not have the adequate financial and other resources

to properly maintain the child (respondent No. 7). He has

submitted that respondent No. 6 resides in Bikram, which is a

sub-divisional headquarter, whereas the petitioner lives in a

bigger town at Gaya which is a distinct headquarter. He

contends that the petitioner has sufficient resources to take due

care of the welfare of respondent No. 7. He further submits that

the writ petition is maintainable and it is a fit case where this

Court should interfere exercising jurisdiction under Article 226

of the Constitution of India by directing handing over the

custody of respondent No. 7 to respondent No. 6.

6. Learned counsel representing the respondent No. 6

has submitted that the question as regards the best interest of Patna High Court CR. WJC No.945 of 2023 dt.11-10-2023

respondent No. 7 can be appreciated also by the family court

which has jurisdiction to deal with the custody of a child. He

further submits that it will not be in the best interest and welfare

of the child too, to hand over his custody to the petitioner who is

facing a criminal case of serious nature.

7. There cannot be any quarrel over the legal position

that in appropriate cases, issues relating to custody of child can

be entertained by this Court exercising jurisdiction on a habeas

corpus petition under Article 226 of the Constitution of India.

The Supreme Court's decisions, on which the learned counsel

for the petitioner placed reliance, do not, however, relate to the

circumstance when the person claiming custody of the child was

facing criminal prosecution.

8. It has been pointed out by the learned counsel for

the petitioner that the petitioner had approached the learned

Judicial Magistrate 1st Class, Gaya under Section 97 of the CrPC

in this regard. The said application was outrightly misconceived

in the Court's opinion. Section 97 of the CrPC reads as under :-

"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 Patna High Court CR. WJC No.945 of 2023 dt.11-10-2023

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."

9. Learned counsel for the petitioner has not been able

to point out as to how the custody of respondent No. 7 with

respondent No. 6 would amount to an offence so as to invoke

Section 97 of the CrPC. Secondly, an application under Section

97 of the CrPC could have been made before the District

Magistrate of the concerned district. It is not the case of the

petitioner that the child was in custody of respondent No. 6

within the district of Gaya.

10. After having heard learned counsel for the

petitioner and learned counsel for respondent No. 6, we are

satisfied that this is not a fit case where this Court, in exercise of

writ jurisdiction, should issue a writ in the nature of a writ of

habeas corpus by directing handing over the custody of

respondent No. 7 to his father (the petitioner), who is facing a

criminal prosecution.

11. We do not find any compelling circumstance as to

why this Court should entertain the present writ application

when the petitioner has effective remedy of approaching the

family court under Section 7(g) of the Family Courts Act

claiming custody of the child.

Patna High Court CR. WJC No.945 of 2023 dt.11-10-2023

12. This application is accordingly dismissed,

however, with a liberty to the petitioner to approach the family

court under Section 7(g) of the Family Courts Act for the relief

which he is seeking in the present proceeding.

                                         (Chakradhari Sharan Singh, J)


                                            (Nawneet Kumar Pandey, J)
Rajesh/Ashok
AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          17.10.2023
Transmission Date       17.10.2023