S.C.Mathur, J. - (1.) THIS is an application under Sections 482 and 483 of the Code of Criminal Procedure. The applicants have prayed for quashing proceedings pending against them under Section 365 of the Indian Penal Code in the Court of Chief Judicial Magistrate, Sultanpur, opposite party no. 2. These proceedings arose from First Information Report filed by opposite party no. 1. The dispute between the parties centres round a minor boy Jai Prakash. In order to dispose off this application certain facts may be stated.
(2.) JAI Prakash, the minor boy is the son of applicant No. 1 Om Prakash Srivastava. Applicant no. 2 Sri Ram Srivastava is the father of Om Prakash Srivastava, that is he is the grand f ather of the minor. Sri Prakash, applicant no. 3, is brother of Om Prakash Srivastava, that is he is the uncle of the minor. Opposite party no. 1 Dudh Nath Srivastava is maternal grand father (Nana of the minor). On 23rd May, 1966 the First Information Report was lodged by opposite party no. I with the allegation that on 21st March, 1976 at 5 P. M. the applicant had kidnapped the minor boy JAI Prakash. In this First Information Report the age of the minor was disclosed as four years. It was asserted that the custody of the minor had been obtained through legal proceedings. On the basis of this First Information Report the police traced out the boy and handed over the minor to Smt. Usha Srivastava, the mother of the minor. Smt. Usha Srivastava is daughter of Dudh Nath Srivastava, opposite party no. 1. On 30th May, 1966 the police of Sultanpur submitted a final report to the Chief Judicial Magistrate, Sultanpur for acceptance. Before this final report could be accepted, an application was moved on 21st February, 1977 by opposite party no. 1 praying that the final report submitted by the police be not accepted. The learned Magistrate after going through the application moved on behalf of opposite party no. 1 and after perusing the case diary, ordered that the applicant be summoned for 27-4-1977. The applicant, instead of putting in appearance before Chief Judicial Magistrate approached this court by moving application under Sections 482 and 483 of the Code of Criminal Procedure. Sri T. N. Gupta, learned counsel for the applicants asserted that under the provisions of Hindu Minority and Guardianship Act the father is the guardian and therefore entitled to the custody of the minor boy and therefore no case under Section 365 IPC could be made out against the person who was the natural guardian of the minor. The learned counsel relied upon Section 6 of the said Act. Section 6 of the Act provides as follows : "The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are- (a) in the case of a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother......" In order to bring his case within the ambit of Clause (a) the learned counsel relied upon the deposition made by Smt. Usha Srivastava on 2-11- 1977 in the court of Civil Judge, Malihabad, Lucknow in Regular Suit No. 114 of 1976 wherein she gave out the date of birth of the minor as 8-3- 1971. A certified copy of this deposition has been filed as Annexure No. 1 to the supplementary affidavit dated 29th July, 1978 filed by Om Prakash Srivastava. The learned Government Advocate urged that this document has not yet been brought on the record of the court below and therefore, in proceeding under Section 482 of the Code of Criminal Procedure this document cannot be relied upon. The learned Government Advocate urged that in the present proceeding only that evidence can be taken into consideration which is already on the record of the court below. In support of his contention he relied upon a decision of this court in the case of Gulzar Singh v. Bal Kishan Singh, 1977 ACrR 54. In this case the preposition of law laid down by this court is that in proceedings under Section 482 of the Code of Criminal Procedure this court is confined to the allegation made in the complaint or report and that this court while deciding the application under Section 482 has to [proceed on the assumption that the allegations contained in the complaint or report are correct. It is further laid down that at this stage no investigation cam be made as to whether the said allegations are correct or incorrect. I am in respectful agreement with the view taken in this case. In this view of this matter I have to see whether on the basis of the allegations made in the First Information Report any case has been made out against the applicants or not. As indicated hereinabove the allegations made in the First Information Report are that the age of the minor was f our years and that the custody of the minor had been obtained through legal proceedings. In case the age of the minor is less than five years, under the provisions of Clause (a) of Section 6 of the Hindu Minority and Guardianship Act, his mother is entitled to have the custody of the minor whether the minor be a boy or a girl. Since I am confined to the allegations made in the report, I cannot look into the certified copy of the depositions of Smt. Usha Srivastava which had been relied upon by the learned counsel for the applicants. Further the said deposition is not by a party to the present proceedings. Smt. Usha Srivastava is neither an accused in the case pending before the Chief Judicial Magistrate nor she is a party before this court. It is at best Smt. Usha Srivastava's previous statement and it is open to her to explain the admission contained in her deposition if she choses to enter the witness box while the case proceeds before the learned court below. It will, thereafter, be for the learned Magistrate to decide as to which version of her is correct.
(3.) TN support of the arguments that, being the natural guardian, father was; entitled to custody and therefore, not offence under Section 365 IPC could be made out against him, the learned counsel relied upon the following decisions :-The Empress v. R. P. Counsell, ILR 1882 (8) Calcutta 836 ; AIR 1938 Madras 656 in re Kannegati Chow- darayya. The learned counsel has cited both the above decisions on the assumption that his argument that the age of the minor given in the deposition of Smt. Usha Srivastava will be acceptable in these proceedings. In view of the fact that I have taken the view that the age disclosed in the said deposition is not final and there is still controversy between the parties as regards the correct age of the minor, both the authorities cited by the learned counsel cannot be of any assistance to him at this stage. Apart from the question of age, opposite party no. 1 in his report to the police had asserted that the custody of the minor had been obtained through legal proceedings. If this allegation is substantiated, the applicants may be guilty of the offence of kidnapping as defined under Section 361 of the Indian Penal Code. Under the explanation to Section 361 the term "lawful guardian" includes any person lawfully entrusted with the care or custody of a minor.;