Naresh Rathod Vs Tarun Rathod

Prayer: Criminal Revision Case filed under Section 397 & 401 of Cr.P.C. praying to set aside the order passed in Crl.MP.No.29525 of 2023 in CC.No.1129 of 2021 dated 20.10.2023 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai as illegal, unjust in the eyes of Law and allow the discharge petition Crl.MP.No.29525 of 2023 in CC.No.1129 of 2021.

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For Petitioners : Mr.P.Kabilan

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For Respondent : No appearance

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ORDER

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This criminal revision case has been filed against the

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dismissal order passed in Crl.MP.No.29525 of 2023 in CC.No.1129 of 2021 dated 20.10.2023 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai, thereby dismissing the petition filed for Page 1 of 6

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https://www.mhc.tn.gov.in/judis

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Crl.RC.No.2151 of 2023

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discharge under Section 245 of Cr.P.C.

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The petitioners are the relatives of the respondent’s wife.

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The respondent had misunderstanding with his wife and they got separated. Due to their wedlock, they had given birth to a male child. According to the respondent, the child was in his custody and he was studying in a school. The respondent filed suit in OS.No.343 of 2019 for injunction to restrain his wife from taking custody of their son except due process of law on the file of the III Additional Family Court, Chennai. While pending the suit, the trial court directed the respondent to produce the child before the Family Court. However, on 21.01.2020, when the respondent was to take the minor child to produce before the Family Court, the petitioners kidnapped the child wrongfully restraining his father. Immediately, the respondent lodged complaint before the jurisdictional Inspector of Police and there was no action taken against the petitioners. Therefore, the respondent’s father also lodged complaint before G3, Kilpauk Police Station, Chennai. However, no action was taken and as such, the respondent filed private complaint and the same has been taken cognizance by the trial court for the offence punishable under Sections 323, 363 of IPC r/w Section 34 of IPC.

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Crl.RC.No.2151 of 2023 3. Heard, the learned counsel for the petitioners and perused all

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the materials placed before this Court. It is found that the respondent refused to receive notice, therefore it would amount to completion of service of notice. Even when the matter is called today, no one on behalf of the respondent has appeared before this Court either in person or through pleader.

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On perusal of records and also on the submissions of the learned counsel for the petitioners, it is revealed that admittedly the respondent got married his wife and gave birth to a male child. Therefore, they got separated due to misunderstanding between them and his wife is now living separately. The respondent had apprehended that the minor child would be kidnapped by his wife and as such, he filed suit in OS.No.343 of 2019 on the file of the III Additional Family Court, Chennai for injunction restraining his wife from taking custody of their minor son except due process of law. While pending the suit, when the respondent’s father was to take the male child to produce before the trial court, the petitioners allegedly kidnapped the child and handed over to the respondent’s wife. Now the child is in the custody of the respondent. Further, in the suit filed by the respondent, injunction was granted and it was challenged upto Hon’ble Supreme Court of India and the petitioners Page 3 of 6

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Crl.RC.No.2151 of 2023 were granted only visitation right in respect of the child, in the house of the respondent’s wife. When the child was taken back by his own mother, it would not amount to kidnapping. In fact on the date of the alleged occurrence, the wife of the respondent was very much present in the school where the minor child was studying. After seeing his mother outside his school gate, the minor child ran to his mother naturally. Therefore, the respondent’s father who came to pick the child created altercation, but the wife of the respondent took the child back and immediately left the place and went back to her house. Therefore, no ingredients are available to attract the offence under Sections 323, 363 of IPC r/w Section 34 of IPC. Therefore, on the complaint lodged by the respondent’s father, the jurisdictional police rightly did not take any action since no offence is made out. When the natural guardian took the child, it cannot be construed as kidnapping. Therefore, the entire proceedings is nothing but clear abuse of process of law and the same cannot be sustained.

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In view of the above discussion, this criminal revision case is allowed and the order passed in Crl.MP.No.29525 of 2023 in CC.No.1129 of 2021 dated 20.10.2023 on the file of the learned II Metropolitan Magistrate, Egmore, Chennai, is set aside. The petitioners Page 4 of 6

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Crl.RC.No.2151 of 2023

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are discharged from all the charges under Sections 323, 363 of IPC r/w Section 34 of IPC. Consequently, connected miscellaneous petition is closed.

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27.04.2026 Index : Yes/No Neutral citation : Yes/No Speaking/non-speaking order lok

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