Anuj Malik Vs. State and ors - Court Judgment

Excerpt:
1 s.b. criminal misc.petition no. 1325/2010 anuj malik vs. state & ors. date of order:07. 05.2012 hon'ble mr. justice sandeep mehta mr.shambhoo singh, for the petitioner. mr.a.r.nikub, public prosecutor. mr.ds udawat ] mr.sss sisodia ], for the respondents. the instant misc.petition has been preferred against the order dated 13.09.2010 passed by learned sub divisional magistrate, bhem (rajsamand) whereby the custody of the respondent no. 4 has been directed to be handed over to the respondent no.3. learned counsel for the petitioner submits that the petitioner and the respondent no. 4 married with each other with their free will. he submits that the respondent no. 4 is a major lady, aged 26 years and as such, the sub divisional magistrate is not competent to pass an order of custody in relation to a major person. learned counsel appearing for the respondent nos 3 and 4 do not dispute the fact that the respondent no. 4 is a major lady. it is also admitted that at present, the respondent no. 4 is living with the petitioner, who is her husband. apparently, the order dated 13.09.2010 is absolutely illegal and abuse of process of the court and beyond the scope of proceedings under section 97 and 98 cr.p.c.. in a proceedings under section 97 cr.p.c., the highest order, which the executive magistrate can pass is to direct a search & production of a person unlawfully confined. in a proceedings under section 98 cr.p.c., the executive magistrate can direct a unlawfully confined major woman to be restored to liberty but these provisions do not entitle the magistrate to give custody a major person to anybody. 2 in view of the facts, it is apparent that the order dated 13.09.2010 passed by sub divisional magistrate, bheem (rajsamand) whereby the custody of respondent no. 4 has been directed to be handed over to the respondent no. 3 is absolutely illegal and abuse of process of the court. the petition thus succeeds and the order dated 13.09.2010 passed by the learned sub divisional magistrate, bheem directing the handing over the custody of the respondent no. 4 to the respondent no. 3 is hereby quashed. stay application is also disposed of. (sandeep mehta), j.bhartij

Judgment:
1 S.B. Criminal Misc.Petition No. 1325/2010 Anuj Malik Vs. State & Ors. Date of Order:

07. 05.2012 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr.Shambhoo Singh, for the petitioner. Mr.A.R.Nikub, Public Prosecutor. Mr.DS Udawat ] Mr.SSs Sisodia ], for the respondents. The instant misc.petition has been preferred against the order dated 13.09.2010 passed by learned Sub Divisional Magistrate, Bhem (Rajsamand) whereby the custody of the respondent no. 4 has been directed to be handed over to the respondent no.

3. Learned counsel for the petitioner submits that the petitioner and the respondent no. 4 married with each other with their free will. He submits that the respondent no. 4 is a major lady, aged 26 years and as such, the Sub Divisional Magistrate is not competent to pass an order of custody in relation to a major person. Learned counsel appearing for the respondent nos 3 and 4 do not dispute the fact that the respondent no. 4 is a major lady. It is also admitted that at present, the respondent no. 4 is living with the petitioner, who is her husband. Apparently, the order dated 13.09.2010 is absolutely illegal and abuse of process of the Court and beyond the scope of proceedings under Section 97 and 98 Cr.P.C.. In a proceedings under Section 97 CR.P.C., the highest order, which the Executive Magistrate can pass is to direct a search & Production of a person unlawfully confined. In a proceedings under Section 98 Cr.P.C., the Executive Magistrate can direct a unlawfully confined major woman to be restored to liberty but these provisions do not entitle the Magistrate to give custody a major person to anybody. 2 In view of the facts, it is apparent that the order dated 13.09.2010 passed by Sub Divisional Magistrate, Bheem (Rajsamand) whereby the custody of respondent no. 4 has been directed to be handed over to the respondent no. 3 is absolutely illegal and abuse of process of the Court. The petition thus succeeds and the order dated 13.09.2010 passed by the learned Sub Divisional Magistrate, Bheem directing the handing over the custody of the respondent no. 4 to the respondent no. 3 is hereby quashed. Stay application is also disposed of. (SANDEEP MEHTA), J.

Bhartij