Nazir Ahmad Bhat vs Mst. Jawahira

G.D. Sharma, J.—Through the medium of this petition inherent jurisdiction of the Court vested u/s 561-A, Cr.P.C. has been invoked to

quash order dated 22-10-99 passed by the Judicial (Forest) Magistrate, Srinagar whereby he directed the SHO of the concerned Police Station

to free the female child, aged seven months named Bisma from the wrongful confinement of her father namely, Nazir Ahmad Bhat son of

Mohmmad Rafiq Bhat resident of Sarmarg Teh. Handwara and produce her in the Court on 27-10-1999. Respondent namely, Mst. Jawahara is

the wife of the petitioner and she had made application u/s 100, Cr.P.C. before the said Magistrate alleging therein that on account of strained

marital relations, the petitioner herein forcibly took the child from her custody. The child is a suckling baby who is denied the breast feeding and in

this manner her life is being endangered. The Magistrate had recorded the statement of the respondent on oath who had stated that petitioner has

kept a mistress and leads licentious life. He even consumes liquor and after robbing the respondent of her jwellery forcibly took away the child

from her lap. All this happened while living in rented accommodation in the city of Srinagar. He has kept the child in his parental house where her

life is in danger as she is not getting mother's milk and care. The Magistrate after his satisfaction believed that the child was confined under such

circumstances which make the confinement an offence and accordingly issued the search warrant as stated above.

The petitioner has challenged the order of the Magistrate on the ground that the child is with her father who is the natural guardian. That such

custody cannot be said as wrongful confinement. The Magistrate has abused the process of law by depriving the natural guardian to keep the child

with him.

Heard the arguments.

The learned counsel appearing for the petitioner has contended that u/s 100, Cr.P.C. warrant cannot be issued unless the confinement of the

person amounts to wrongful confinement as defined under Sections 399 and 340, RPC. The power to issue search warrant is confined only to this

limited purpose and Magistrate is not required to give a finding in whose custody the child should remain. The custody of the child is with her

natural guardian and it is not such a confinement which amounts of an offence. The issuance of search warrant and production of child in the Court

is abuse of the process of law. In order to buttress his contention, the learned counsel has cited the case of Vinod Gandotra v. Geeta Gandotra,

1999 KLJ 326. The learned counsel has also cited the case of Romesh v. Lakshmi Bai (1999 (9) is contended by the opposing counsel that the

respondent is the natural guardian of the suckling child and the forcible denial of her custody is causing trauma to the respondent who is unable to

give her breast feeding.

The controversy of the case in short is whether the confinement of the child is lawful or the confinement amounts to an offence. Admittedly, the

minor child was seven months old at the time when she was taken out from the custody of the respondent who had been feeding her own milk. The

child was having natural instinct to have breast feeding and its forcible denial resulted in causing physical and mental injuries to the child as well as

to the mother (respondent). The child may for some time had refused to take substituted milk feed and suffered from hunger or malfunctioning of

the digestive system. Deprivation from motherly love, affection and care cannot be ruled out. Under these circumstances the confinement can

amount to the commission of offences falling under Sections 323, 317, RPC etc. Section 100, Cr.P.C. is attracted where the conferment amounts

to an offence. It does not contemplate the commission of an offence of wrongful confinement as defined u/s 340, RPC. It is advantageous to

reproduce Section 100, Cr.P.C. and Section 349, RPC.

Section 100, Cr.P.C.

Search for persons wrongfully confined. If any Magistrate of the first class or Sub-Divisional Magistrate 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.

Section 340, RPC.

Wrongful confinement - Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain

circumscribing limits, is said ""wrongfully to confine"" that person.

The offence of wrongful confinement u/s 349, RPC is made out when any person wrongfully restrains any person in such a manner as to prevent

that person from proceeding beyond certain circumscribing limits. A suckling child on his own cannot proceed or even does not have any instinct

or discretion to proceed in any direction. No question of circumscribing the limits can arise in that case. It cannot be said that a child has no legal

remedy when he is wrongfully confined and the confinement is causing him bodily and emotional injuries. Section 100 Cr.P.C. deals with such

circumstances where the confinement amounts to an offence. This confinement is wider than wrongful confinement defined u/s 349, RPC and the

former covers the latter in its sphere of operation. On this legal premises the finding recorded by the learned single Judge of this Court in the case

of Vinod Gandotra (supra) in para No. 8 that, ""It may also be noted here that u/s 100 of the Cr.P.C. warrant could not have been issued unless

the confinement of the person so confined, tantamount to wrongful confinement under Sections 339 and 304, RPC"", is differed and not followed.

The Apex Court in the case of Govt. of A.P. and Others Vs. V. Veera Raghavan, has held that Section 97 (of the Central Cr.P.C.) was not

attracted because the child was of nine years and living with his own father. The controversy regarding his custody was pending adjudication under

the provisions of Guardians and Wards Act, 1890. He could not be said to be under illegal confinement. The facts of the present case in hand are

different as the confinement has amounted to an offence. The law cited at the bar is thus of no help for the petitioner.

In view of the discussion made above, it is found that there is no illegality in the impugned order. The learned Magistrate has not abused the

process of the Court. Accordingly there is no merit in this petition which is dismissed.

The petitioner was directed in terms of order dt. 10-5-200 to produce the minor child in the Court on 15-5-2000 but this direction has not been

complied with. Ld. counsel appearing for the petitioner prays for some time but the prayer is not accepted. The S.H.O. Handwara is accordingly

directed to recover the child from the confinement and produce before the Court of Judicial (Forest) Magistrate, Srinagar on 17-5-2000 and the

Ld. Magistrate shall deliver the child to the respondent in the open Court for her custody. This order shall have no effect for determining the legal

custody of the child under the personal or general law and is only confined to the provisions of Section 100, Cr.P.C.

Copy of the order be sent to Forest Magistrate for information.