Mukul Pratap Singh vs State Of Uttarakhand And Another

Pankaj Purohit, J

By means of the present writ petition, the petitioner has challenged the order dated 04.09.2024, passed by learned City Magistrate, Haridwar in Case No.1 of 2024, under Section 100 of B.N.S.S. 2023 Kotwali Jwalapur, Haridwar, whereby custody of Master – Agastya Chauhan was directed to be handed-over to respondent no.2-mother, after search.

The order impugned has been assailed by learned counsel for the petitioner, mainly, on the ground that such an order cannot be passed by the learned City Magistrate, under Section 100 of B.N.S.S. 2023.

It is contended by learned counsel for the petitioner that such an order can only be passed when a person is illegally detained, but here in the case in hand the child was with his father, who, under law, is his natural guardian, therefore, the same cannot be termed as illegal custody. The order dated 04.09.2024 passed by learned City Magistrate, Haridwar is illegal and deserves to be quashed.

Per contra, learned counsel for respondent no.2 submitted that the custody was made over to respondent no.2, after search as the minor was not present at the house.

Heard learned counsel for the parties and perused the writ petition carefully along with impugned order.

In order to appreciate, the arguments advanced by learned counsel for the parties, the provision of Section 100 B.N.S.S. 2023 would be conducive to be interpreted for proper disposal of the case.

Section 100 of B.N.S.S. 2023 is quote hereinbelow:-

“100. 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.”

From bare perusal of the aforesaid Section 100 B.N.S.S. 2023, it transpires that this section empowers – District Magistrate, Sub-Divisional Magistrate or Magistrate of first class – to search for persons, who are wrongfully, confined, when there is a reason to believe that if any person is confined under such circumstances that confinement would amounts to an offence.

In that situation the aforesaid Magistrates’ may issue a search warrant and the person wrongfully confined, if found, shall be immediately taken before a Magistrate, who shall make an order as it deems fit and proper, under the circumstances.

Here in the case in hand, even if, the alleged confinement of Master – Agastya Chauhan was not known, for his whereabouts, still after search having been made, and when it was found that he was in the custody of his father-the petitioner, who, under law, is his natural guardian, Master – Agastya Chauhan could not be handed-over to his mother-respondent no.2 by the Magistrate. Thus the order appears to be illegal and without jurisdiction as Master – Agastya Chauhan cannot be withdrawn from legal custody of his father.

Be that as it may, the order dated 04.09.2024, passed by learned City Magistrate, Haridwar in Case No.1 of 2024, under Sections 100 of B.N.S.S. 2023 Kotwali Jwalapur, Haridwar is totally illegal and without jurisdiction and accordingly the same is quashed.

Accordingly writ petition stands allowed.