R.A.Misra - (1.) THIS revision arises out of an order dated 16th March, 1985 passed by 7th Munsif Magistrate Bahraich rejecting the application of Sant Bachan for the custody of his daughter Km. Kamini.
(2.) THE facts which give rise to this revision are as follows :- Sri Sant Bachan lodged FIR on 12th February 1985 against Ghanshyam opposite party No. 2 under Sections 363, 366 and 109 IPC with the allegations that Ghanshyam kidnapped Km. Kamini on 11th of February 1985. THE Investigating Officer recovered Km. Kamini on 20th February 1985 from the custody of Ghanshyam. He arrested Ghanshyam and referred Km. Kamini for Medical examination whereby she was examined by the Medical Expert on 23rd February 1985. In the opinion of the Medical Expert she was aged above 17 years. She was produced before a Magistrate 1st Class on 6th March 1985 and her statement under Section 164 CrPC was recorded. On the same day in view of her statement under Section 164 CrPC and the medical report the learned Magistrate directed her to be set at liberty and move out from police custody according to her sweatwill. It so appears that on 7th March 1985 the Station Officer submitted a report before the Magistrate that Km. Kamini wanted to go with Ghanshyam who was in jail. THE learned Magistrate thereupon permitted her to go with her father-in-law the father of the accused Ghanshyam. THE revisionist Sant Bachan moved an application on 14th March 85 with the prayer that Km. Kamini be handed over to his custody because she was minor and he happened to be her natural guardian. THE learned Magistrate vide his order dated 16th March, 85 refused to modify the earlier orders dated 6th and 7th March 1985 referred above and rejected the father's application for custody. Hence his revision. The fact that Sant Bachan lodged a report against Ghanshyam under Section 363, 366 and 109 IPC, and the fact that Km. Kamini was recovered on 20th February 1985 and permitted to go with Brij Mohan the father of Ghanshy am as narrated above go unchallenged. The application moved by Sant Bachan on 14th March 1985 has not been annexed with the revision. The orders dated 6th and 7th March 1985 have also not been annexed but the operative portions of these orders may be gathered from the impugned order dated 16th March 1985. The statement of Km. Kamini recorded under Section 164 CrPC has been annexed with the rejoinder affidavit as Annexure-1. Smt.Kamini has given her age as 20 years and she clearly stated to have married Ghanshyam out of her sweatwiil and his father stated that she wants to live with him. The medical report also indicates that she is above 17 years of age. The learned counsel for the revisionist has vehemently argued that Km. Kamini is a minor below 18 years of age. The fact nevertheless remains that prima facie the material on record discloses that she is in no case below 17 years and is above 17 years of age. She stated before the Magistrate that she wanted to go with her husband Ghanshyam and in view of the statement under Section 164 CrPC and the medical report, the Magistrate could not compel her to remain in the custody of her father. The application of the father for the custody of Km. Kamini under the prevailing circumstances has rightly been rejected by the court below. I see no legal infirmity in the order so passed by the court below. Learned counsel for the revisionist has read over the application moved by the father for the custody of Km. Kamini from his file though it has not been annexed with the revision. I am unable to agree with him that the application fulfills the ingredients of Section 97 CrPC. I am therefore unable to agree with him that the Magistrate was obliged to proceed on the application of the father under Section 97 of CrPC.
(3.) IN the result I see no illegality or irregularity in the order passed by the Court below rejecting the revisionist's application for custody of Km. Kamini. It so appears that the Investigating Officer has submitted a final report after investigation on 8-3-1985. The learned Magistrate should not accept the final report in mechancial manner. He shall apply his mind and pass appropriate orders after perusing the Case Diary and other material placed before him. With these observations the revision is dismissed and the stay order passed on 20th March 85 is vacated.;