Reserved
Court No. 72
Case :- APPLICATION U/S 482 No. - 3231 of 2018 Applicant :- Gaurav Yadav Opposite Party :- State Of U.P.And 4 Others Counsel for Applicant :- Krishna Mohan Garg Counsel for Opposite Party :- G.A.,Hitesh Pachori,Sanjeev Kumar Yadav
Hon'ble Rajiv Joshi,J.
Heard Sri Krishna Mohan Garg, learned counsel for the applicant, Sri Sanjay Kumar Yadav, learned counsel for O.P. No.5 and learned AGA for the State.
The present 482 Cr.P.C. application has been filed for quashing the order dated 10.1.2018 passed by the Additional chief Judicial Magistrate, Court No. 5, Agra in Criminal Complaint No. nill of 2017, (Hemlata Yadav Vs. Gaurav yadav & Anr.) registered as Case Crime No. 670 of 2017 under Section 323 and 506 IPC, Police Station Etmadpur, District-Agra whereby the Magistrate directed the Investigating Officer to deliver the custody of infant child to his mother i.e. O.P. no. 5.
The relevant facts for consideration of the present case are thus:
The applicant and O.P. No.5 are the husband and wife. Out of their wedlock a son was born on 16.9.2014. Dispute between them is pending on account of matrimonial discord and differences.
It reflects from the record that an application under Section 156 (3) Cr. P.C. was filed by the O.P. No.5-wife before the Additional Chief Judicial Magistrate, Court No. 5, Agra against the applicant and his brother namely Devesh Yadav to get an first information report registered against them with the allegation that on 10.11.2017 about 6:00pm when the O.P. No.5 was coming on an Auto-rickshaw and reached K.P. Engineering College, the applicant along his associate came there in a Swift Desire Car and forcibly kidnapped the infant child of O.P. No. 5 on pistol point.
Subsequently, the Magistrate vide order dated 24.10.2017 allowed the application filed by O.P. No.5 under Section 156(3) Cr.P.C. and directed the concerned police station to register the FIR, investigate the matter and after investigation inform the result of the investigation to the court. On the basis of the aforesaid order dated 24.10.2017, initial NCR lodged by the Police of the concerned police station bearing NCR No. 0136 of 2017 on 11.10.2017 was converted into Case Crime No. 670 of 2017 under Section 323 and 506 IPC against the applicant and his brother. The police after investigation submitted a final report with the conclusion that the entire story has been cooked up by the O.P. No.5 and the facts are false and fabricated. The final report dated 23.12.2017 is appended as annexure no. 11 to the application.
Subsequently, an application was filed by O.P. No.5 on 10.1.2018 in the said criminal case under Section 156 (3) for a direction to the investigating officer to restore the custody of infant child to her. On the same day, the application of O.P. No.5 was allowed by the Magistrate and the Investigating Officer was directed to recover the infant child from the custody of the applicant and give the child in the custody of O.P. No. 5-mother on the ground of mother breast fed. The order dated 10.1.2018 is impugned in the present application.
Contention of learned counsel for the applicant is that the order passed by the Magistrate is totally illegal and beyond its jurisdiction and no such order can be passed by the Magistrate for delivering the custody of the infant child to the mother.
Further contention of the learned counsel for the applicant is that the applicant is also natural guardian and admittedly the child is in his custody and the Magistrate cannot direct for the custody of the child to the mother as the proper remedy for custody of the child, if any, is available under the Guardianship and Wards Act, hence the Magistrate has no jurisdiction to pass such order, and even the said order has been passed by the Magistrate without affording any opportunity of hearing to the applicant.
On the other hand, learned AGA as well as counsel for the O.P. No.5 have justified the order by stating that the infant child naturally should be in the custody of the mother for breast fed and as such the order passed by the Magistrate is fully justified.
I have considered the rival submission so raised by the learned counsel for the parties and perused the record.
Admittedly, on the basis of the order passed by the Magistrate, the FIR being Case Crime No. Case Crime No. 670 of 2017 under Section 323 and 506 IPC has been registered against the applicant and the police after investigating the matter, found the facts mentioned in the report by the informant to be totally false and fabricated and that no such incident as alleged has ever taken place and therefore, the final report was submitted on 23.12.2017. The Magistrate having passed the order on the application filed by O.P. No. 5 under Section 156(3) Cr.P.C. has become functus officio and cannot pass the order for custody of the child.
Section 9 of the Guardianship and Wards Act prescribes a detailed procedure for custody of the child and welfare of the child is the paramount consideration in the matter of custody of the child. The Magistrate cannot assume the power under Guardianship and Wards Act and pass the impugned order directing the Investigating Officer to hand over the custody of infant child to the O.P. No.5 when he has become functus officio. The Magistrate after submission of the final report has exceeded his jurisdiction while passing the impugned order for custody of the child.
Learned counsel for appearing on behalf of opposite parties has not been able to satisfy the Court about the propriety of the Magistrate in passing the impugned orders even after the submission of the final report and that too without affording any opportunity of hearing to the applicant before passing the order as the order was passed on the same day the application was moved.
In these circumstance, the impugned order dated 10.1.2018 passed by the Additional chief Judicial Magistrate is unsustainable in the eyes of law and the same is therefore, quashed.
The present application stands allowed. No order as to costs.
Order Date :- 22.8.2019/Akbar