G. M. LODHA, J. - (1.) SHARAFUDDIN has filed this criminal misc. petition under S. 482, Cr. P. C. with the prayer that the orders dated 11/4/1983 and 16/6/1983 by which the bailable warrants were issued against him and he was asked to produce two children, should be quashed.
(2.) SHRI Sittal Das, learned counsel has appeared for the petitioner-Shara-fuddin. Mst. Kanija Fatma is represented by SHRI A. K. Gupta. Even though, repeated efforts were made to procure SHRI Gupta's attendance and the case was adjourned on 4/9/1986 and 9/9/1986, he has not appeared to contest this petition. In brief, the facts leading to this petition may now be narrated. On 24/9/1982, Riyazudin s/o Sharafuddin filed a complaint before the police that his uncle, Rahisuddin alias Babu is married with Kanija Fatma of 22 years. This Kanija Fatma has been abducted by Taihir on 3/9/1982 and Tahir wants to keep her as married wife. Rahisuddin was so much shocked and due to that, he committed suicide on 9/9/1982 by jumping into well of Amar Akbari Masjid. Kanija Fatma is absconding. Ramganj police station registered a case and than investigation followed. Kanija Fatma was arrested with two children, namely, Sahila aged 7 years, and Ehatramuddin aged 8 years, in F. I. R. No. 302/82 registered for the offence under S. 380, IPC When Kanija Fatma and Mohd. Tahir were released on bail, these two children were given in the custody of harafuddin (petitioner) vide order dated 27. 6. 83 which reads as under: ...[Vernacular Text Ommited]... Later on, criminal case was investigated but it was found that Kanij Fatma has gone at her free will and, therefore, no case is made out. Consequently final report was given and accepted by the court. After that acceptance, application was moved by Kanij Fatma 16. 3. 83 for giving back custody of the two children. On this, certain proceedings were started and ultimately bailable warrants were issued. Shri Shittal Das's principal argument is that the custody of the two children were given by the police and once the Magistrate is functus officio as the final report has been given then mother of the children should approach the competent civil court for their custody either under Guardianship and Wards Act or, the personal law. as advised.
(3.) I am handicapped in considering this application because no one has appeared on behalf of the mother inspite of my best efforts to get assistance. The order dated 27/6/1983 shows that the children were not prepared to go with the mother even though the court wanted to send them with the mother. The Magistrate has mentioned in the order that the legal guardian would be mother Kanij Fatma and it would be for the mother to create condition, where the children want to come to her. Obviously, the present one is a case, where the allegation is that father died by committing suicide on account of infidelity of Kanij Fatma who eloped with Rahisuddin alias Babu. The children were greatly aggrieved by this action of mother and, therefore, were not prepared to go with the mother. Be that as it may, when the criminal proceedings have ended and the final report has been accepted, it would not be new in the interest of justice to drag these proceedings for getting children from the custody of the petitioner, Sharafuddin and than deciding the question where these children should go now. It should not be forgotten that the order was passed on 27/6/1983 and since then both the children are with Sharfundin, mother Kanij Fatma is always at liberty to move application for getting custddy because the Magistrate had held her to legal guardian. As and when an application is moved, question of legal guar-dinship would be decided and at that time the interest of children would also be considered and, views and opinions of the children would be taken by the civil court. I am convinced that the dragging of these proceedings in criminal court is an off-suit of the main case would not be expedient in the interest of justice. ;