Bombay High Court
Purushottam Wamanrao Thakur, And …
Warsha W/O Narendra Thakur And …
on 20 September, 1991
Equivalent citations: 1993 (3) BomCR 587, 1992 CriLJ 1688, II (1994) DMC 173
Bench: B Wahane
1. Whether the institution of the proceeding u/s. 97 of the Cr.P.C. directing the applicant No. 1 Purushottam Thakur to produce and hand over the minor children to the non-applicant No. 1 Smt. Warsha w/o Narayan Thakur, was legal, just and proper ? This is the only question to determine.
2. The facts giving rise to decide the question raised by the applicants are as follows :
The applicant No. 1 Purushottam Thakur is the father of the applicant No. 2 Narendra Thakur. The non-applicant No. 1 Smt. Warsha is the wife of the applicant No. 2 Narendra Thakur. The non-applicants Nos. 2 and 3 viz. Ku. Chinmaya and Akshay are the daughter and son of the applicant No. 2 Narendra and non-applicant No. 1 Smt. Warsha. Therefore, the applicant No. 1 Purushottam Thakur is the father-in-law of the non-applicant No. 1 Smt. Warsha and the grandfather of the non-applicants Nos. 2 and 3 – Ku. Chinmaya and Akshay.
Out of the wed lock the applicant No. 2 Narendra and non-applicant No. 1 Smt. Warsha have 3 children. Ku. Chinmaya’s date of birth is 14-6-1985, Akshay the non-applicant No. 3’s date of birth is 29-4-1987 and the 3rd one Pralhad born on 14-12-1989.
The applicant No. 2 Narendra Thakur is an Engineer working in the service of State. He and his wife Smt. Warsha were living together at Ratnagiri where Narendra was posted as an Engineer. The dispute arose between the husband and wife. We need not go in details about their rival contentions of strained relations.
It is an admitted fact that on 17-10-1989 the non-applicant No. 1 Warsha was reached to her father’s house by the applicant No. 2 Narendra Thakur. At that time, they had a daughter viz. Chinmaya aged about 5 years and a son Akshay aged about 2 years. Smt. Warsha was also due for 3rd delivery. According to Smt. Warsha, on 17-10-1989, her husband forcibly took away Ku. Chinmaya and Akshay from her custody in spite of her resistance. Shri Narendra the husband of Smt. Warsha assured her that he would return the children to her on 3-11-89 i.e. after Diwali Festival. The children not being returned, Smt. Warsha sent her brother to Daryapur on 8-11-89 where both the children (non-applicants 2 and 3) were lodged with their grandfather i.e. the applicant No. 1. When the brother of Smt. Warsha asked the applicant No. 1 to allow the non-applicants Nos. 2 and 3 to accompany him to Mangrulpir, the applicant No. 1 declined to do so and driven him out. It is, thus, crystal clear that though the applicant No. 2 Narendra father of non-applicants Nos. 2 and 3 took both the children on 17-10-89 instead of keeping them with him, Shri Narendra kept the children at Daryapur with his father.
Smt. Warsha’s father received a letter on 3-1-90 and a telegram on 14-1-90 from the applicant No. 2 Narendra Thakur to the effect that Smt. Warsha should not go to Daryapur. Thereby, she was prevented from approaching her children and taking the custody of them. Being the mother of the minor children, under law, she is entitled for the custody of her minor children. She was prevented and the children were confined in the custody of the applicant No. 1 i.e. the father-in-law of Smt. Warsha. Smt. Warsha filed and application u/s. 97 of Cr.P.C. before the Judicial Magistrate, First Class, Mangrulpir, contending that the children were wrongfully confined by Shri Purushottam the grandfather of the children. The learned J.M.F.C., Mangrulpir after hearing, issued search warrant directing Shri Purushottam Thakur to produce the children before the Court. In pursuance of the search warrant, the children were produced before the Court on 20-1-1990 by the Police. On 23-1-1990 Shri Purushottam filed the reply denying the allegations levelled in the application particularly forcibly taking away and wrongful confinement of the children. Shri Purushottam Thakur specifically contended that the children are taking education under his supervision and utmost care is being taken as he himself is well educated person, serving as a Jr. Lecturer at Daryapur. He specifically contended that in the interest and welfare of the children, they should remain with him.
After hearing the parties, the learned J.M.F.C. Mangrulpir passed the order on 25-1-1990 holding that the wrongful confinement was not made out and the application under Section 97 of Cr.P.C. was not tenable.
On 20-1-1990 i.e. before the reply was filed by Purushottam Thakur, the learned J.M.F.C. had directed that the children should remain in custody of mother – Smt. Warsha during the pendency of that application. However, while the order was passed on 25-1-1990, Smt. Warsha was directed to give the custody of the children to the father of the children viz. Narendra Thakur. In spite of the order, as the custody of the children was not given to the applicants, they filed an application on 29-1-1990 before the J.M.F.C. Mangrulpir. But, the application was rejected by an order dated 30-1-1990 as not being maintainable.
Smt. Warsha being aggrieved by the order dated 25-1-1990 passed by J.M.F.C., Mangrulpir in M.J.C. No. 11/90, preferred a criminal revision application No. 24/90 which was allowed by the Addl. Sessions Judge, Washim vide order dated 11-5-1990. The applicants also preferred the criminal revision application No. 14/90 against the order of rejection of their application on 30-1-1990, but the same was rejected by the order dated 11-5-1990. The criminal revision applications No. 14/90 and 24/90 were decided by the common order by the learned Addl. Sessions Judge, Washim.
3. Before hearing the learned counsel for the parties, I initiated reconciliation proceeding requesting both the learned Counsel for the parties to keep their clients present in the court. On 12-9-1991 Smt. Warsha with her children and other relations was present in the court. However, none of the applicants were present on that day. On the request of Mr. Palshikar, the learned counsel for the applicants, the case was adjourned to 13-9-1991. On 13-9-1991, the applicant No. 1 Purushottam Thakur, non-applicant No. 1 Smt. Warsha the wife of Narendra were present in the court with the children. At 2.15 p.m. the parties along with their counsel were called in Chamber and I tried to bring home the amicable settlement between the parties not only in respect of the custody of the children but considering the young age of Smt. Warsha and her husband Narendra Thakur to patch up their dispute and to lead married life. During the discussion it appeared that Smt. Warsha had developed apprehension from her husband Narendra and, therefore, she felt that in case the joined the society of her husband, there is no guarantee about her life and honour. She has brought to my notice that Narendra has filed a divorce petition and, therefore, he is not interested to lead married life with her. As there was no settlement I was constrained to hear both the counsel and perusing record to decide the case on merit.
4. Shri Palshikar, the learned counsel for the applicants strenuously argued that the learned Addl. Sessions Judge, Washim has completely misdirected himself in construing the provisions of Section 97 of Cr.P.C. thought the case was not made out to the effect that the non-applicants Nos. 2 and 3 – minor children were confined by the applicant No. 1 who is the grandfather of the children and under such circumstances the confinement amounts to an offence. It is further submitted that for a search warrant under Section 97 of Cr.P.C., a person must be in wrongful confinement and such confinement amounts to an offence. The case, in hand, according to the applicants the children were staying with their grandfather and grandmother and were going to the school. They were also freely moving in the town with their grandfather and grandmother. Therefore, it cannot be said that the children were in confinement much less in wrongful confinement of the applicant No. 1. Further, it is submitted that the children in the custody of the grandparents did not amount to any offence as the children were handed over by their natural guardian – the father i.e. the applicant No. 2 Narendara Thakur. Shri Palshikar, the learned counsel for the applicants submitted that the learned Addl. Sessions Judge, Washim has dealt with the application under Section 97 of Cr.P.C. as if it was an application for custody under the provisions of the Hindu Minority and Guardianship Act and the Guardians and Wards Act, 1925. In case if at all the mother wanted the custody of the children, she should have applied under the relevant provisions of the Act providing for getting custody of the minors but certainly Section 97 was not the remedy. The order of the learned Addl. Sessions Judge, Washim, though apparently deals with the welfare of the minors, is in fact in abusory process of law as he could not have imported those principles while considering the application under Section 97 of Cr.P.C. The order of the learned Addl. Sessions Judge, Washim is, therefore, perverse and is liable to be set aside.
5. Section 97 of the Cr.P.C. reads as under :
“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 confinement amounts to an offence, he may issue a search warrant, and the person to whom such 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.”
Wrongful confinement is defined in Section 340 of I.P.C. which is an under :
“Whoever wrongful 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.”
6. Shri Chandurkar, the learned counsel for the non-applicants supported the findings of the learned Addl. Sessions Judge, Washim and submitted that the non-applicant No. 2 a daughter Ku. Chinmaya and the non-applicant No. 3 a son Akshay were admittedly minors and below 5 years when the application under Section 97 of Cr.P.C. was filed in the court of J.M.F.C., Mangrulpir on 19-1-1990. The non-applicants Nos. 2 and 3 minor children were removed by the applicant No. 2 Shri Narendra Thakur on 17-10-1989 and instead of keeping the children with him, he reached the minors to Daryapur and kept them with his father i.e. the applicant No. 1 Purushottam Thakur and his wife. When the action of applicant No. 2 Narendra was obstructed, he extended an assurance to return the children after Diwali Holidays but as the children were not returned and given in custody of the non-applicant No. 1 Smt. Warsha, she was constrained to send her brother to bring the children but he was prevented to do so. Though it is side that the minors were freely moving along with their grandparents, it cannot be said that they was free lancer to move according to their desire being of tender age. As the non-applicants 2 and 3 were not allowed to go to their mother, naturally they were restrained and confined. The mother being the natural guardian to have custody of minor children below 5 years of age, the institution of the application under S. 97 of the Cr.P.C. was just and proper.
A reliance has been placed on the case of Sk. Razak v. Riyasathbi reported in 1975 Cr. LJ 1131 (Bombay-Nagpur Bench). In the case before His Lordship, the relations between the husband and wife were deteriorated and consequently the wife left the house of the husband. The husband and wife both resided at Nagpur but in different Mohallas. The spouses had a child. The child was with her mother who was staying with her mother. The child was residing with the mother since the birth. The mother of the child alleged that on 5-1-73 at about 7 a.m. her husband came with some of his friends, made a row, assualted the mother and took away the child forcibly from her custody. She filed a report with the police but no action appears to have been taken. Consequently, an application under Section 100 of Cr.P.C. was filed.
Considering the circumstances, Lordship held that;
“There was a confinement of the child which amounted to an offence. This being the subjective satisfaction of the Magistrate, which cannot be lightly interfered with at the revisional stage unless a strong case is made out before the Court. Once that position is accepted, then the matter becomes more clear that the Magistrate had no option but to pass an order to search warrant.”
A reliance is placed on the case of K. Pareekutty v. Ayyikkal Ayissakutty, 1978 Cri LJ NOC 98 (Ker). In the case before his Lordship, the child of 4 years was with a Muslim mother who was entitled in law to the custody of her child. Even after divorce as the father of the child removed the child from the custody of her mother by using physical force, the search warrant was issued at her instance. The learned Judge observed that :
“Under the circumstance, the Magistrate issuing the warrant be said to have reason to believe that the confinement by the father amounted to wrongful confinement”.
Further it is observed that;
“It is revolting to modern sense of justice and fair-play that a person who has lawful custody of the minor should be deprived of such custody by crude means which has no sanction under the law. Removal of the child by using physical force from the custody of the mother is prima facie a wrongful act. Keeping the child beyond the reach of the person who is entitled to its custody would amount to wrongful confinement”.
7. The learned Addl. Sessions Judge, Washim while passing the order relied on the case of Zahirul Hassan v. State of U.P. 1988 (1) Crimes p 199 : (1988 Cri LJ 230). The facts of that case are similar to this case. In that case, the dispute was between the father and mother for custody of children, while in the present case, the dispute is between the mother and grandfather of the children. In that case the parties are Mohammedan and it was held that –
“If the children of below 7 years of age were forcibly taken away from the custody of mother by the father, the court can issue warrant under Section 97 of the Cr.P.C. for search of children and also hand over the custody of children to the mother if found suitable”.
8. Shri Chandurkar, the learned counsel for the non-applicants submitted that the mother being the natural guardian, she is entitled to have the custody of the child till the child is below 5 years of age under Section 6 of the Hindu Minority and Guardianship Act, 1956. The object and purpose being ex facie to ensure the welfare of the minor ward which necessarily involves due protection of the right of his guardian to properly look after the ward’s health, maintenance and education. Admittedly, in the case in hand, the non-applicants Nos. 2 and 3 at the relevant time i.e. when the application under Section 97 of Cr.P.C. was filed in the court of J.M.F.C., Mangrulpir were below 5 years of age.
Reliance has been placed on the case of Rosy Jacob v. Jacob A. Chakramakkal, . In para 14, Their Lordships discussed Section 25 of the Guardians and Wards Act, as under;
“In our opinion, S. 25 of the Guardians and Wards Act contemplates not only actual physical custody but also constructive custody of the guardian which term includes all the categories of guardians. The object and purpose of this provision being ex facie to ensure the welfare of the minor ward, which necessarily involves due protection of the right of his guardian to properly look after the ward’s health, maintenance and education. This section demands reasonably liberal interpretation so as to effectuate that object”.
Further their Lordships observed that;
“The father’s fitness from the point of view just mentioned cannot override considerations of the welfare of the minor children. No doubt, the father has been presumed by the staute generally to be better fitted to look after the children – being normally the earning member and head of the family – but the court has in each case to see primarily to the welfare of the children in determining the question of their custody in the background of all the relevant facts having a bearing on their health maintenance and education. The family is normally the heart of our society and for a balanced and healthy growth of children it is highly desirable that they get their due share of affection and care from both the parents in their normal parental home. Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who in addition, because of her profession and financial resources, may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels : nor are they mere play things for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions yielded to the considerations of their welfare as human being so that they may grow up in normal balanced manner to be useful members of the society and the guardian court in case of a dispute between the mother and the father is excepted to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them”.
A reliance has been placed on the case of L. Chandran v. Mrs. Venkatalakshmi, . Their Lordships in para 11 observed that;
“It is now well known that this broad view of the right of the father to claim the custody of the minor child without reference to the welfare of the minor is not acceptable to law. It appears to us that such a view is not only untenable on authorities but is clearly wrong in constitutional principle. Child is a person within the meaning of Art. 21 of the Constitution. It has, therefore, a right to its life as guaranteed by Art. 21 of the Constitution. The word ‘life’ should be understood in this context as expansively as it has been understood in other contexts as comprehending more than mere animal existence. (See Kharak Singh v. State of U.P. . The theory that the father has an unlimited and unrestricted right to the custody of the minor child even to the extent of disregarding the welfare of the child would be theoretically inconsistent with this constitutional provision. It is no doubt true that the minor is not in a position to express its preferences. But that incapacity makes no difference to the legal theory with which we are now concerned because that incapacity would not take away the child’s inalienable right to life recognized by the Constitution. The recognition of an unlimited right in another person be it the father, to the custody of the Ward would not only be constitutionally inconsistent with this right of the minor under Art. 21 of the Constitution but it would also be in consistent with the constitutional power and duty of this court to protect and enforce the fundamental right to life of all persons including that of the minor. This argument of the learned counsel for the petitioner that the father has an unlimited right to claim the custody of the minor child without reference to the welfare of the minor child must, therefore, be rejected.”
Para 12 Normally, there can be no absolute rights in a social order. In a social formal rights can only be relational. As recently said by Lord Diplock in Maharaj’s case (1978) 2 WLR 902, 909, in a society one man’s freedom is another man’s restriction. The fetish of right has hitherto been the cause of many a confusion in our jurisprudence. We must not merely look to the subject of the right without identifying the person over which this right is to be exercised. In a social order all rights in the ultimate analysis are only rights and relations between persons and not between person and inanimate things sometimes called, ‘nature’. Recognition of father’s unlimited right to the custody of the child would almost reduce the child to the position of a chattel from the position of a person. We cannot therefore, accept this absolutist legal proposition. Law is more than logic but is no more than social engineering. It is social policy backed by the State force. The sanctity of its dictum must be found in the ultimate analysis in its service of social goals as determined by the Constitution. Under the feudal order, allegiance and protection went together hand-in-hand and the feudal Lord assumed protection of his vassal in return for the latter’s allegiance. This is one of the legal principles that advent of capitalistic legal order did not choose to replace. Particularly in the case of minors who cannot be excepted to express their intelligent preferences the modern State assumes the ultimate responsibility for their welfare. This is the origin of parents patriae jurisdiction of the Courts sharing in the sovereign power of the State. In exercise of this jurisdiction, which is derived not by reason of any statute but as an inseparable attribute of judicial power of the State, the court should always look to the welfare of the minor in all matters relating to its life. Every claim including the one which has been advanced in this case by the father for the custody of the minor child, must be subordinate to the power and duty of this jurisdiction to look after the welfare of the minor. For these reasons, we have no hesitation in rejecting the submission made on behalf of the petitioner”.
Reliance has been placed on the case of Smt. Renu Vaid v. Ravi Vaid (MP – DB – ). In this case, the petition was filed by the mother for issuance of writ of habeas corpus for custody of her minor Vivek who was for the time being, in the custody of the respondent – his father. In para 5, Their Lordships observed that;
“The general principal in matters relating to the custody of a minor is well settled that the paramount consideration is the welfare of the minor and not the legal right of this or that party. The cases referred to us all proceed upon this principle. We may also in this connection refer to the proviso to Section 6(a) of the Hindu Minority and Guardianship Act, 1956, which provides that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. There is a strong presumption that mother’s protection for children of tender age is indispensable. There may, however, be circumstances in a particular case which rebut this presumption and it may be held that the welfare of the minor, although of tender age, lies in giving the custody to the father.”
It is universally accepted that “Mother is the name for God in the lips and hearts of little children”.
It is observed that “God could not be everywhere and, therefore, he made mothers”. …. A Jewish proverb.
It is also said that “What is home without a mother ?”.
It is also common experience of all that “A mother loves her child more than the father does because she knows it’s her own, while the father only thinks it’s his”.
Nepoleon Bonaparts says that “The future destiny of the child is always the work of the mother”.
Tennyson says that “The bearing and the training of a child is woman’s wisdom”.
There is a proverb in Marathi that “Aai sarkhi maya aani nimbachi chhaya”
9. Reliance has been made on the case of Harbans Singh v. Vidya Wanti, . The learned Judge in para 6 preferred the case of Smt. Maya Devi v. Amolak Ram, (1956) 58 Pun LR 557 wherein it is observed that;
“The right of a father as a natural guardian to the custody of his minor child is not an indefeasible right in law, if the exercise of such a right is not in the minor’s welfare. An order under Section 25, Guardians and Wards Act is really meant to protect the minors welfare which is the primarily consideration in deciding whether or not the custody of the minor should be restored to the applicant. Such a matter has to be decided on practical and humanitarian and not on sanctimonious grounds”.
10. Shri Chandurkar, the learned counsel for the non-applicants relied on the case of Thirty Hoshie Dolikuka v. Hoshiam Shavaksha Dolikuka, . In the instant case, the dispute was between the Parsi couple. There was a bitter squbbles between husband and wife. Therefore, the question of custody of daughter aged about 11 years came before Their Lordships for consideration. In para 17 Their Lordships observed that :
“The principles of law in relation to the custody of a minor appears to be well established. It is well settled that any matter concerning a minor has to be considered and decided only from the point of view of the welfare and interest of the minor. In dealing with a matter concerning a minor, the Court has a special responsibility and it is the duty of the court to consider the welfare of the minor and to protect the minor’s interest. In considering the question of custody of a minor, the Court has to be guided by the only consideration of the welfare of the minor”.
In para 18, Their Lordships observed that :
“In Halsbury’s Laws of England, 3rd Edn. Vol. 21, the Law is succinctly stated in para 428 at pp 193-194 in the following terms :-
“428. Infant’s welfare paramount. In any proceedings before any Court, concerning the custody of upbringing of an infant or the administration of any property belonging to or held on trust for an infant or the application of the income thereof, the Court must regard the welfare of the infant as the first and paramount consideration, and must not take into consideration, whether from any other point of view, the claim of the father, or any right at common law possessed by the father in respect of such custody, upbringing administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father. This provision applies whether both parents are living or either or both is or are dead.
Even where the infant is a foreign national, the Court, while giving weight to the views of the foreign Court, is bound to treat the welfare of the infant as being of the first and paramount consideration whatever orders may have been made by the Courts of any other country”.
In para 19, Their Lordships further observed that;
In the case of Rosy Jacob v. Jacob A. Chakrammakkal (supra), this Court has observed at pp 934-935 (at p. 2100) :
“Where, however, family dissolution due to some unavoidable circumstances becomes necessary the Court has to come to a judicial decision on the question of the welfare of the children on a full consideration of all the relevant circumstances. Merely because the father loves his children and is not shown to be otherwise undesirable cannot necessarily lead to the conclusion that the welfare of the children would be better promoted by granting their custody to him as against the wife who may also be equally affectionate towards her children and otherwise equally free from blemish, and who is addition because of her profession and financial resources may be in a position to guarantee better health, education and maintenance for them. The children are not mere chattels; nor are they mere playthings for their parents. Absolute right of parents over the destinies and the lives of their children has, in the modern changed social conditions, yielded to the considerations of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society and the guardian Court in case of a dispute between the mother and the father, is expected to strike a just and proper balance between the requirements of welfare of the minor children and the rights of their respective parents over them. The approach of the learned single Judge, in our view, was correct and we agree with him. The Letters Patent Bench on appeal seems to us to have erred in reversing him on grounds, which we are unable to appreciate.
At the bar reference was made to a number of decided cases on the question of the right of father to be appointed or declared as guardian and to be granted custody of his minor children under Section 25 r/w S. 19 of the Guardians and Wards Act. Those decisions were mostly decided on their own peculiar facts. We have, therefore, not considered it necessary to deal with them. To the extent, however, they go against the view we have taken of S. 25 of the Guardians and Wards Act, they must be held to be wrongly decided.
The respondent’s contention that the Court under the Divorce Act had granted custody of the two younger children to the wife on the ground of their being of tender age, no longer holds goods and that, therefore, their custody must be handed over to him appears to us to be misconceived. The age of the daughter at present is such that she must need the constant company of a grown-up female in the house genuinely interested in her welfare. He mother is in the circumstances the best company for her. The daughter would need her mother’s advice and guidance on several matters of importance.”
11. Considering the principles laid down by Their Lordships of the Supreme Court and of various High Courts, there is no dispute that mother is entitled of the custody of the child below the age of 5 years, being a guardian. On 17-10-1989, the children were in the custody of the non-applicant No. 1 Smt. Warsha the mother, when she reached to her parents place for 3rd delivery. The children were taken away from her custody by the husband on the assurance of returning them to her custody. However, it is an admitted fact that the applicant No. 2 the husband of the non-applicant No. 1 Warsha instead of taking the children with him, he took them to his parents who are residing at Daryapur. The children were not returned to the custody of the non-applicant No. 1 Warsha and when her brother had gone to bring them back, he was driven out. Thus, the non-applicant No. 1 Warsha was prevented from love and affection of her children and also their custody. It has been brought to my notice that the non-applicants Nos. 2 and 3 are admitted in the school. It is an admitted fact that the non-applicant Nos. 2 and 3 were in the custody of their grand-parents. Considering the facts and circumstances, there is no doubt that the non-applicants Nos. 2 and 3 were confined. Therefore, the proceedings instituted under Section 97 of the Cr.P.C. were legal, just and proper.
The learned Addl. Sessions Judge, Washim has considered all the factual and legal aspects and findings are well founded and, therefore, they are confirmed.
12. An attempt was made by Shri Chandurkar, the learned counsel for the non-applicants, relying on the case of Rajankumar Machananda v. State of Karnataka, 1990 (Supp) SCC 132, to submit that the instant application being the second application, it cannot be entertained at all under Section 482 of Cr.P.C. Their Lordships observed that :
“The question for consideration is as to whether the bar under S. 397(3) Cr.P.C. should have been taken note of to reject the revision at the instance of the State Govt. or action taken by the High Court in exercise of its inherent power has to be sustained. It is not disputed by Counsel appearing for the State that the move before the High Court was really on application for revision of the order of the Magistrate releasing the truck. That is exactly prohibited under S. 397(3), Cr.P.C. Merely by saying that jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of S. 397(3) of the Code could be labelled as one under S. 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. The appeal is allowed and we set aside the order of the High Court. The order of the Magistrate as affirmed by the Sessions Judge is upheld”.
13. There is no dispute about the principles laid down by Their Lordships of the Supreme Court. However, it is not applicable in the case in hand. In the case in hand, the applicants had not challenged the order passed by the learned J.M.F.C., Mangrulpir on 25-1-90, it being in their favour. However, the children were given in the custody of their mother on 20-1-1990. After passing the final order dtd. 25-1-90, the applicants approached the learned J.M.F.C. Mangrulpir by filing an application on 29-10-1990 praying for the restoration of the children to them. However, the application, not being maintainable, was rejected vide order dtd. 30-01-90. Against the order passed on the application dtd. 29-1-90, the applicant No. 1 filed a criminal revision No. 14/90. The non-applicant No. 1 Warsha filed a criminal revision No. 24/90 against the order passed by J.M.F.C. Mangrulpir dtd. 25-1-90. The learned Addl. Sessions Judge, Washim passed the common order. The instant revision application No. 84/90 is the first revision filed in this Court against the order passed by the learned Addl. Sessions Judge, Washim in criminal revision No. 24/90, setting aside the order passed by the learned J.M.F.C., Mangrulpir. It being the first revision, the principle as laid down by their Lordships of the Supreme Court in the case cited supra, is not applicable at all. Therefore, there is no force in the submission made by Shri Chandurkar, the learned counsel for the non-applicants.
14. In the result, the application is rejected.
15. Order accordingly.