- (1.) THIS writ petition has been filed by the petitioners Smt.Sonali Singh, Gaurav Singh, Retd. Major' Narsingh Bahadur Singh, Rajiv Singh and Ashutosh Singh with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned FIR dated 31-3-2009 in case crime No. 966 of 2009 under Sections 363, 120-B, IPC, P.S. Kotwali, District Ghazipur and to issue a writ, order or direction in the nature of man­damus restraing the opposite parties from arresting the petitioners in the above men­tioned case.
(2.) THE facts in brief of this case are that the FIR has been lodged by Krishna Pratap Singh @ Babuwa Singh at P.S. Kotwali, District Ghazipur on 31-3-2009 at 12.15 p.m. in respect of the incident which had occurred on 18-3-2009 at about 7.00 p.m. alleging therein that son of the first informant namely late Anand Prakash Singh had died, his son Rishabh Anand aged about 10 years and his daughter Km. Shaurya Anand aged about 13 years were given to the first informant in his guard­ianship by the Court but the widow of late Anand Prakash Singh who is mother of Km. Shaurya Anand and Rishabh Anand has performed another marriage has kidnapped the above mentioned children forc­ibly from the custody of the first informant. The first informant moved an application in the Court of District Judge, Ghazipur for becoming guardian of aforesaid minor children and to restrain Smt. Sonali Singh for not taking the minor children from the custody of the first informant on which the interim order dated 9-8-2007 was passed and notice was issued to Smt. Sonali Singh who filed the reply also in the Court, after considering the same the Court has passed the order dated 11-11-2008 declar­ing the first informant to be guardian of the above mentioned children. Both the children are in the custody of the first in­formant who were student, of St. Johns School, Tulsipur, Ghazipur. The Head Master of the school was also informed about the Courts order dated 9-8-2007. On 18-3-2009 the first informant left the children in school by his personal car, thereafter he went Nandganj Bazar, both the children were appearing in the exami­nation, the closer of the school was at 1.00 p.m., Ram Chandra, employee of the first informant sent to the school by his wife for taking the children. The first infor­mant was also returning from the Nandganj at about 11.30 a.m. he saw a Tata Safari vehicle coming from the front side in which the petitioners and the kidnapped children were sitting, the driver of the vehicle was unknown, it was not time of the closer of the school, therefore, the first informant thought it a suspicion, thereafter he went to the school where his employee Ram Chandra came in a perturbed condition and said that the children have been forc­ibly taken away by the petitioners, he tried to prevent them but he was pushed down, thereafter he came to know from the Prin­cipal of the school that petitioner Smt. Sonali Singh had expressed his desire to meet her children, then both the children were called and brought to the office and by playing a fraud both the children were taken away by the petitioner Smt. Sonali Singh. Being aggrieved from the im­pugned FIR the petitioners have filed this writ petitioner before this Court. Heard Sri Rakesh Pandey, learned Counsel for the petitioners, learned A.G. A. for and State and Sri A.K. Malviya, learned Counsel for the respondent No. 4.
(3.) IT is contended by learned Coun­sel for the petitioners that petitioner No. 1 Smt. Sonali Singh is mother of the al­leged kidnapped children, in such circum­stances, no offence under Sections 363, 120-B, IPC is made out. Both the chil­dren are with the petitioner No. 1 who is natural guardian. This FIR has been lodged due to ulterior motive so that the petitioners may be unnecessarily ha­rassed, therefore, the FIR and its investi­gation may be quashed. There is dispute between mother and grand-father of the alleged kidnapped children. The respon­dent No. 4 being the grand-father of the children want to take the custody of the children, therefore, an application under Section 13 Hindu Minor Guardianship Act and Section 25 of the Guardian and Wards Act claiming the custody of the minor chil­dren has been filed, the same is pending in the Court of learned District Judge, Ghazipur. But O.P. No. 4 has obtained ex parte order on 11-11-2008 thereby he got himself appointed as guardian of the mi­nor children and their movable property. The petitioner has filed a restoration ap­plication. The respondent No. 4 has a property dispute with petitioner No. 4 who is real nephew of the O.P. No. 4. The pe­titioner No. 5 is son of sister of O.P. No. 4. The petitioner No. 5 has lodged an FIR against O.P. No. 4 in case crime No. 1259 of 1998 under Sections 420, 467, 468, 471, 120-B, IPC, PS. Kotwali, District Ghazipur. The O.P. No. 4 is emotionally blackmailing the petitioners. The FIR is wholly mala fide which has been lodged due to ulterior motive on the basis of some extraneous considerations, therefore, the FIR may be quashed.;