Remanded

Sri Basavaraju v. State of Karnataka

Karnataka HC10 Aug 2021CRL.P/4155/2021

Case brief

AI extract

What is this about?

High Court set aside orders of Sessions Judge and Magistrate regarding custody of victim girl in a child abduction case. Court ordered remand to Magistrate to ensure mother of victim is heard and strictly follow statutory guidelines for age determination before passing fresh order.

What did the court decide?

Order passed by revisional court set aside and matter remanded to Magistrate to consider afresh after giving opportunity to mother of victim.

Sri Basavaraju Vs State of Karnataka — Child Custody and Guardianship | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE K.NATARAJAN

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CRIMINAL PETITION No.4155 of 2021

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BETWEEN

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SRI BASAVARAJU S/O. DEVEGOWDA, AGED ABOUT 52 YEARS, RESIDING AT ARALAKUPPE VILLAGE, CHINAKURULI HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT, KARNATAKA - 571 434.

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SRI KISHORA S/O. BASAVARAJU AGED ABOUT 23 YEARS, RESIDING AT ARALAKUPPE VILLAGE, CHINAKURULI HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT, KARNATAKA - 571 434.

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…PETITIONERS

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(BY SRI BHUVANENDRA RAJU P., AND SRI P.B. RAJU, ADVOCATES)

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AND

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STATE OF KARNATAKA BY PSI, SRIRANGAPATNA RURAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BENGALURU - 560 001.

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DISTRICT CHILD PROTECTION OFFICER MANDYA, AT CARMEL CONVENT ROAD, MANDYA – 571 401.

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SMT. SUVARNA W/O. KUMARASWAMY, AGED ABOUT 35 YEARS, SITHAPURA VILLAGE, CHINAKURULI HOBLI, PANDAVAPURA TALUK, MANDYA DISTRICT - -571 434.

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…RESPONDENTS

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(BY SRI MAHESH SHETTY, HCGP for R-1 and R-2 SMT. KUSUM RANGANATH, ADVOCATE for R-3)

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THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ORDER DATED 16.04.2021 PASSED IN CRL.RP.No.28/2021 ON THE FILE OF THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA AND BE PLEASED TO CONFIRM THE ORDERS DATED 17.03.2021 ON THE APPLICATION FILED BY PETITIONER No.1 UNDER SECTION 98 OF CR.P.C. IN CR.No.18/2021 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., PANDAVAPURA.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION through video conferencing, THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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Learned High Court Government Pleader takes notice

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for respondent Nos.1 and 2.

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This petition is filed by the petitioners under Section

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482 of Cr.P.C. for setting aside the order passed by the I

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Additional District and Sessions Judge, Mandya, in Crl.R.P.No.28/2021 setting aside the order passed by the Senior Civil Judge and JMFC., Pandavapura, allowing the application filed by this petitioner under Section 98 of Cr.P.C. for handing over the custody of the victim girl to him in Crime No.18/2021 registered by Srirangapatna Rural Police.

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Heard learned counsel for the petitioners and learned High Court Government Pleader for respondent Nos.1 and 2 as also learned counsel for respondent No.3.

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The case of the applicant/petitioner No.1 is that respondent No.3 filed a complaint before the Srirangapatna Rural Police alleging that her minor daughter has been abducted by the son of this petitioner Kishora and a case was registered in Crime No.18/2021 for the offence punishable under Section 363 of IPC. It is alleged that during investigation, the Police came to know that the victim is 18 years 3 months, but not a child within 18 years of age. Hence, the Police proposed to file ‘B’

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Final Report. In the meanwhile, petitioner No.1 being the father of Kishora/accused named in Crime No.18/2021 filed an application under Section 98 of Cr.P.C. seeking custody of the victim girl to him. Learned Magistrate called for the objections from the Additional Public Prosecutor, also called the victim girl to the Court and made oral enquiry with her. She has stated that she wants to go with the applicant. Hence, the impugned order dated 17.03.2021 came to be passed by the learned Magistrate by allowing the application filed by the applicant/petitioner No.1 under Section 98 of Cr.P.C. and restored the custody of the victim girl to him. Being aggrieved by the said order, the complainant-mother of the victim girl who is respondent No.3 herein filed a Criminal Revision Petition before the learned Sessions Judge. The learned Sessions Judge entertained the Criminal Revision Petition and set aside the order passed by the learned Magistrate. However, the application of petitioner No.1 came to be dismissed and the victim was ordered to be released from the custody of the applicant

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and directed the Police to take the victim girl to Girls Home till disposal of the matter before Child Welfare Committee (CWC). Being aggrieved by the same, petitioner No.1applicant and his son are before the Court.

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Learned counsel for the petitioners contended that the learned Magistrate considered the age of the victim by relying upon her SSLC Marks Card as per Section 12 of the Juvenile Justice Act. The procedure for determining the age of the child is matriculation or SSLC Certificate, which is enough. Considering the same, the learned Magistrate granted custody of the victim girl to the father of the accused and the victim has also expressed her consent to go along with him. The Sessions Court without issuing any notice to him has set aside the order, which is not correct.

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Per contra, learned High Court Government Pleader submitted that as per the judgment of the Hon’ble Apex Court in the case of Sanjeev Kumar Gupta vs. State of

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Uttar Pradesh and another reported in (2019) 12 SCC 370 , enquiry is required to be conducted by the Court

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before such an order. Even though the victim is 18 years, no enquiry has been conducted by the Court. Therefore, the order under challenge suffers legally.

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Learned counsel for respondent No.3 mainly objected

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the petition and justifying the order of the learned Sessions Judge contended that before passing of the impugned order by the learned Magistrate, no notice was issued to the mother of the victim who is the complainant in the criminal case. The applicant, who is the father of the accused, has no locus standi to file such an application and

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further more, no enquiry has been conducted by the learned Magistrate while giving custody of the victim girl to the applicant. The order has been passed hurriedly without giving an opportunity to the complainant. The CWC after considering the age of the victim and making necessary enquiry, though registered a case against the petitioner, but not the son. Such being the case, she prayed for dismissing the petition. However, both the

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counsel submit that the matter may be remanded back for fresh consideration.

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Submissions of learned counsel on both sides and learned High Court Government Pleader are placed on record.

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Ofcourse the applicant is said to be the father of the main accused who is said to have abducted the victim girl and the learned Magistrate relying upon the SSLC Certificate has come to the conclusion that she is a major. However, there is no order intimating the complainant for objecting the application and passing of the order. In my considered opinion, without giving an opportunity to the complainant to oppose the application while giving custody of the victim girl to a guardian, the Court cannot ignore the natural guardian and mother of the victim. Therefore, the order passed by the learned Magistrate suffers from legality and requires to be set aside. The revisional court has rightly set aside the order. However, the revisional Court ought to have heard the present applicant who has

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got the order in his favour before the learned Magistrate. Therefore, without hearing the petitioner and passing the order is an error committed by the revisional court. Hence, the order passed by the revisional Court in Crl.R.P.No.28/21 requires to be set aside and the matter requires to be remanded back to the learned Magistrate to consider afresh by giving an opportunity to the mother of the victim and keeping in view the guidelines issued in the case of Sanjeev Kumar Gupta (supra) and after making necessary enquiry, pass appropriate order in accordance with law.

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The Criminal Petition is disposed of.

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Pending I.As. do not survive for consideration.

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Hence, dismissed.

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Sd/JUDGE

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Sri Basavaraju v. State of Karnataka

Case brief

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Sri Basavaraju v. State of Karnataka

Case brief

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