Telangana High Court
Uzwal Gutta vs State Of Telangana on 24 April, 2024
THE HONOURABLE SMT. JUSTICE K. SUJANA
CRIMINAL PETITION No.4040 of 2023
ORDER:
This criminal petition is filed under Section 482 Cr.PC
seeking to quash the proceedings in C.C.No.281 of 2019 on the file of
VII Additional Chief Metropolitan Magistrate, at Nampally, Hyderabad,
for the alleged offences under Sections 363, 355 read with 34 IPC.
2. The facts of the case are that the 2nd respondent herein has
lodged a complaint before the Police stating that he is the grandfather
of Baby Stephy Graph who is the daughter of his deceased daughter
Mrs. Rekha and 1st petitioner, and further stated that his daughter
Rekha has committed suicide on 06.05.2018 and a crime was
registered against his deceased daughter's husband in P.S.
Chandanagar vide Crime No.264 of 2018 for offences under Sections
498-A, 304-B and same is numbered as S.C.No.596 of 2019 on the file
of Principal Senior Civil Judge, Ranga Reddy District, and same is
pending for adjudication and this petitioner No.1 has filed a complaint
with the Child Welfare Committee (CWC) regarding the whereabouts of
his third child and his youngest daughter Baby Stephy Graph and the
CWC summoned the 2nd respondent to appear before them along with
the child and the 2nd respondent appeared before the CWC member
along with the child by name Baby Stephy Graph, and CWC members
have signaled petitioner No.1 to take away the child from the
respondent No.2 and petitioner No.1 along with his advocate Mr.
Raghunandan pre-planned to kidnap his grand-daughter by criminal
force and in this tussle, the 2nd respondent's daughter Lalitha injured
and had fractured and futher stated that his grand daughter's life is in
danger. Petitioner No.1 along with others used criminal force to take
away his grand-daughter by name Stephy Graph; as such basing on
the same the Police registered a case in FIR No.242 of 2018 arraying
the petitioner as accused No.1. Accused No.1 is the husband of his
deceased daughter, accused No.2 is advocate, accused No.3 is grand-
daughter.
3. The contention of the learned counsel for the petitioner is
that the 2nd respondent daughter Rekha married to the petitioner No.1
and petitioner No.3 is the mother of petitioner No.1 and petitioner
No.2 is the deceased daughter Rekha has committed suicide due to
mental health issues and she also mentioned the same in the suicide
note. In fact Rekha expressed in her suicide note that petitioner No.1
shall take good care of their children. Petitioner No.1 is the natural
father and legal guardian of respondent No.2's grand-daughter Baby
Stephy Graph, and they are taking utmost care of the children and the
petitioner No.2 is the practicing advocate and no way connected with
the offence and he came along with the petitioner to the CWC and the
petitioners are falsely implicated in the case without any allegations
against the petitioners.
4. Learned counsel relied on the judgment of Karnataka High
Court in Capt Vipin Menon v. The State of Karnataka and
another 1, wherein it was observed that:
"a father of the child is a person who is entitled to the lawful
custody of the child and he will not come within the scope of
Section 361 IPC even if he takes away the child from the keeping
of the mother. She may be a lawful guardian as against any
others except the father or any other person who has been
appointed as the legal guardian by virtue of an order of a
competent Court. So long as there is no divestment of the right
of the guardianship of a father, a father cannot be guilty of an
offence under 361 IPC".
5. Learned counsel therefore submits that the petitioners are
not liable for prosecution under Sections 363, 355 read with 34 IPC,
as such prayed the Court to quash the proceedings.
6. Heard both sides.
7. Learned counsel for the petitioners would submit that the
allegations against the natural guardian who is the father of baby are
false and he is entitled for the custody of the child being a natural
guardian and there is no incident took place as stated by the defacto
complainant and further submitted that the allegations are vague in
nature and there cannot be any offence under Sections 363 and 355
IPC.
1992 CrlLJ3737
8. On the other hand, learned counsel for the respondents
submits that there are serious allegations against the petitioners and
there is offence under Section 355 IPC also and therefore it requires
trial and hence prayed to dismiss the criminal petition.
9. Having regard to the rival submissions and material on
record, the allegations against the petitioners are for offences under
Sections 363 and 355 IPC and as seen from the averments of the
complaint, there is a notice issued by the CWC to the defacto
complainant herein, took the child Stephy Graph to the CWC and then
others are waiting in the car outside the compound wall of Juvenile
Home and petitioner No.1 went inside the Juvenile Home and on their
advice came to the car, opened the car door and forcefully taken the
Stephy Graph from his daughter's hands while his daughter resisted
to the wishes, pushed her to the ground and she has sustained
injuries to the right hand; and he mentioned the names of three
persons, petitioner No.1 is the father of the baby and the allegation
against him he forcibly took away the daughter, and the allegation
against petitioners 2 and 3 are that they obstructed the daughter of
respondent No.2 when she tried to take Stephy Graph.
10. Therefore, the allegations against petitioners 2 and 3 are only
omnibus allegations and they do not constitute offence against the
said persons whereas the allegations against petitioner No.1 is that he
forcibly took away the daughter from the hands of the daughter of
respondent No.2 and he thrown her on the ground and she sustained
injuries. Whether he is lawful guardian and entitled to the custody of
the child, and the respondent No.2's daughter Lalitha sustained
injuries requires trial.
11. Accordingly, the petition against petitioner/accused No.1 is
dismissed. However, except obstructing the daughter of respondent
No.2, there are no allegations against petitioners 2 and 3 / accused
Nos.2 and 3; and therefore the petition against petitioners 2 and 3 is
allowed quashing the proceedings in C.C.No.281 of 2019 on the file of
VII Additional Chief Metropolitan Magistrate, at Nampally, Hyderabad.
Miscellaneous petitions, if any pending, shall stand closed.
______________
K. SUJANA, J
24th April, 2024
ksm
