Keshav Pd. Singh & Anr vs The State Of Bihar & Anr on 7 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.6156 of 2012

1. Keshav Pd. Singh S/O Ramjee Singh (Informant) Resident Of Village-
Dhanarua, Police Station- Kahalgaon (Rashlalpur), District- Bhagalpur

2. Chanda Sinha @ Chanda Devi W/O Keshar Pd. Singh Resident Of Village-
Dhanarua, Police Station- Kahalgaon (Rashlalpur), District- Bhagalpur

…. …. Petitioners
Versus

1. The State of Bihar

2. Sonu Priya S/O Late Devi Dayal Ram of Mohalla- S.N. Road, Masak Chak,
Police Station- Adampur, Distt.- Bhagalpur (Accused)

…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. Akhileshwar Prasad Singh, Sr.Advocate
: Mr. Shivesh Chandra Mishra, Advocate
For the Opposite Party No.2 : Mr. Rajni Kant Jha, Advocate
For the State : Mr. Akhileshwar Dayal, APP

CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
Date: 07-09-2017

This criminal miscellaneous application under Section 482

of the Cr.P.C. has been filed to quash the order dated 17.01.2012

passed by Additional Sessions Judge-IV, Bhagalpur in Cr.Revisin

No.208 of 2011 and also the order dated 16.07.2011 passed by CJM,

Bhagalpur in Miscellaneous Case No.14 of 2011. The learned CJM as

per order dated 16.07.2011 directed the petitioners to hand over the

custody of female child, namely, Arpita Priya @ Nanhi to her father

Opposite Party No.2. The petitioners being maternal grand parents

filed Cr.Revision No.208 of 2011 which after hearing was dismissed.

2. The facts in brief is that the Opposite Party No.2 was
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married to Kamano Kumari @ Rubi Devi. The petitioners before this

Court are father and mother of said Kamano Kumari @ Rubi Devi. It

is said that on 06.10.2011 these petitioners got information about

precarious condition of his daughter who was admitted in

J.L.N.M.C.H. Bhagalpur for her treatment. The petitioner no.1 visited

at the hospital and came to know that his daughter was done to death

by administering poison. Her two minor daughters were also

administering poison and out of them one died in the hospital in

course of treatment. The second daughter survived and the present

dispute relates to her custody. The petitioners after the death of their

daughter and one of her female child, brought the second daughter at

their place. The Opposite Party No.2 filed a petition under Section 98

of the Cr.P.C. for the custody of said minor daughter which after

hearing was allowed and the petitioners were directed to hand over the

custody of minor daughter to his father Opposite Party No.2. Against

the said order, the petitioners filed criminal revision which after

hearing was dismissed. The petitioners have thus, approached the

Court to quash the said order passed by the courts below.

3. Learned counsel for the petitioners submits that the

Opposite Party No.2 committed murder of his daughter and one of her

female child by administering poison. He had administered poison

also on the second daughter but on account of treatment she survived.
Patna High Court Cr.Misc. No.6156 of 2012 dt.07-09-2017

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A police case vide Kotwali P.S.Case No.766 of 2010 as was

registered on the fardbeyan of petitioner no.1 against the Opposite

Party No.2 and his family members for the offence under Sections

498A and 304B/34 of the IPC. The matter was investigated and police

submitted chargesheet under Section 306 of the IPC against the

husband and his father. The learned Magistrate took cognizance of

offence and the case is pending for trial before the court below. The

Opposite Party No.2 filed a petition for his discharge from the offence

which was refused and against the said order he has filed

Cr.Misc.No.10561 of 2017 and as per interim order further

proceeding of trial court has been stayed. It has been submitted that

the petitioners have save the life of the girl and at present she is being

looked after nicely by the petitioners. The provision of Section 98

Cr.P.C. is not applicable in the present case. The said provision relates

to restoration of abducted females. This is not as case of abduction of

female child and so the court below has erred passing the order

against the petitioners. It has been further submitted that custody of

minor girl cannot be handed over to Opposite Party No.2 in view of

the fact that he had administered poison to this girl also The learned

Magistrate has erred in directing the petitioners to hand over the child

in the custody of Opposite Party No.2. The impugned order is not

sustainable and is fit to be quashed.

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4. The learned APP as well as learned counsel for the

Opposite Party No.2 opposed the submission.

5. On perusal of the application and the annexures enclosed

with the petition, I find that a police case of Kotwali P.S.Case No.766

of 2010 for the offence under Sections 498A and 304B of the IPC was

registered against the Opposite Party No.2 and the case is pending for

trial before the court below. The Opposite Party No.2 had allegedly

murdered his wife and one of his daughter by administering poison.

This girl was also administered poison but she survived. These

petitioners are maternal grand parents of the girl and they took her in

their custody at hospital after institution of FIR against Opposite Party

No.2. This is not a case of abduction of female so as to attract the

provision of Section 98 of the Cr.P.C. The girl is living with these

petitioners since last seven years and is presently studying. There is

no allegation that the girl was taken by these petitioners for any

unlawful purpose. As against this the Opposite Party No.2 is facing

criminal case lodged by the petitioners. The court below has

committed error in directing the petitioners to hand over the custody

of girl to the Opposite Party No.2 and so the same is not sustainable.

6. Having considered the facts and circumstances of the case,

both the order dated 17.01.2012 passed by Additional Sessions Judge-

IV, Bhagalpur in Cr.Revision No.208 of 2011 and also the order dated
Patna High Court Cr.Misc. No.6156 of 2012 dt.07-09-2017

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16.07.2011 passed by CJM, Bhagalpur in Miscellaneous Case No.14

of 2011 are quashed and this criminal miscellaneous application is

allowed.

(Sanjay Kumar, J)

B.Kr./-

AFR/NAFR NAFR
CAV DATE
Uploading Date 13.09.2017
Transmission 13.09.2017
Date

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