Nirmal Kaur vs Kamaljit Kaur

V.M. Jain, J.—This is a petition u/s 482 Cr.P.C. filed by the petitioners seeking quashment of order dated 29.3.2001 passed by JMIC, in the proceeding u/s 97 Cr.P.C. Facts which are relevant for the decision of the present petition are that 3 minor children, namely Kiran Deep Kaur, Sharan Deep Kaur and Gur Lal Singh were residing with their grandparents, namely Nirmal Kaur and Gurdev Singh (petitioner). Smt. Kamaljjt Kaur, mother of the aforesaid three children, filed an application u/s 97 Cr.P.C., on which, vide order dated 27.3.2001, JMIC Nakodar ordered the issuance of search warrants. When the children appeared before the learned Magistrate on 29.3.2001, the learned Magistrate, after hearing both sides, ordered that the children were minor and their custody should be given to the mother, being the natural guardian, as their father was working abroad. Aggrieved against this order, grandparents have filed the present petition u/s 482 Cr.PC.

Learned counsel for the petitioners has submitted that u/s 97 Cr.PC, the Magistrate could order the issuance of search warrants only if he had reasons to believe that any person was confined under such circumstances that the confinement amounts to an offence. It has been submitted that even if the children were residing with their grandparents, no offence was committed. He was submitted that learned Magistrate could not have passed the order u/s 97 Cr.PC in this case and should have left the parties to approach the Guardian Court.

As referred to above, in the present case the learned Magistrate had delivered the custody of the children to their natural mother, vide order dated 29.3.2001. Since then the children are residing with their mother. She has also got the children admitted in a school called New Diamond Model School in Village Chak Khurd, as per certificate Annexure R-1 issued by the Principal of the said school. In view of the above, at this stage, it would not be appropriate for this Court to interfere with the custody of the children even if it is found that the learned Magistrate was not competent to order the custody of the children to be given to the mother, in proceedings u/s 97 Cr.PC.

In view of the above, in my opinion, no case for interference in the present petition u/s 482 Cr.PC is made out on the facts and circumstances of the present case. Hence the present petition is dismissed. However, it would be without prejudice to the rights of the petitioners to approach the Guardian Court for the custody of the minor children under the provisions of the Hindu Minority and Guardianship Act, 1956 and The Guardians and Wards Act, 1890. The petitioners are relegated to the said remedy. It is further directed that if any such petition is filed the same shall be decided by the Guardian Court in accordance with law, without being prejudiced by the proceedings u/s 97 Cr.PC or the order passed by this Court.

Petition dismissed.