Narsing Rao v. State And Others

1. This is an application in revision on behalf of B. Narsing Rao against the order dated 23rd April 1954 of the Additional Magistrate First Class, Secunderabad, directing the girl Kamala to be handed over to G. Pochiah, the second respondent before us. The facts which culminated in the impugned order may shortly be stated. On 16th April 1954 G. Pochiah lodged information with the police that the petitioner had enticed away his daughter, who was below sixteen years of age in his absence and was refusing to rastore her to his custody. The police registered a case under Sec. 363, Indian Penal Code and issued F.I.R, which reached the court on 20th April 1954. On the same date, three separate applications were made to the Court on behalf of the State, the petitioner and respondent No. 2. The State prayed that pending investigation and trial of the case the girl produced before the Magistrate may be sent to the Rescue Home at Asfnagar. The petitioner claiming himself to be the husband of the girl and the second respondent claiming to be her father competitively contested for ad interim custody of the girl.

2. The learned Magistrate, without going into the merits of the application made by the State gave preference to respondent No. 2, who though a step father was in his opinion a natural guardian and as such better entitled to be entrusted with the interim custody of the girl. The petitioner's application was rejected on the ground that his assertion as to his being the husband of the girl required proof, the occasion for which had not yet arrived.

3. Shri Abul Khair contended on behalf of the petitioner that the State chose a wrong forum for securing an ad interim custody of the girl and the learned Magistrate had erred in dealing with the matter in the way he had done.

4. There is no provision in the Criminal Procedure Code to cover the contingency which has arisen in this case. The proceeding before the Court, it is conceded on all hands, has neither been initiated nor is pending before the court under Sec. 100 or Sec. 552 or the Children's Act (Act 32 of 1951) hereafter to be referred to as the Act. The offence intended to be charged against the petitioner falls under Chapter XVI of the Indian Penal Code, and the girl having regard to her alleged age is ‘child’ as defined by Sec. 2(d) of the Act. Sec. 51 empowers any police officer not below the rank of the Sub-Inspector to take to a place of safety as defined in Sec. 2(j) any child in respect of whom an offence punishable under Chapter XVI had been or there was reason to believe had been committed. It would thus appear that there was no obligation on the part of the Sub-Inspector to produce the girl before the Additional District Magistrate for an appropriate order under the Act. But the girl had been produced before the Court. Sec. 3 provides that the powers conferred on courts by the Act shall be exercised only by—

(a) the High Court.

(b) a court of session,

(c) a District Magistrate,

(d) Chief Magistrate, City Magistrate's Court,

(e) any juvenile Court constituted under Section 40; and

(f) any Magistrate specially empowered by the Government to exercise all or any such powers and may be exercised by such courts whether the case comes before them originally or on appeal or revision.

5. Sec. 52(1) of the Act deals with disposal of child by order of court and enacts:

“Where any person having the actual charge or control over a child has been—

(a) convicted of committing in respect of such child an offence punishable under this Act or under Chapter XVI of the Indian Penal Code; or

(b) committed for trial for any such offence; or

(c) bound over to keep the peace towards such child, by any court, that Court may either at the time when the person is so convicted, committed for trial or bound over or at any other time order that the child be taken out of the charge and control of the person so convicted, committed for trial or bound over and be committed to the cave of a relative of the child or other fit person named by the court (such relative or other person being willing to undertake such care) until he attains the age of eighteen years or for any shorter period, and that court or any court of like jurisdiction, may, of its own motion or on the application of any person, from time to time by order renew, vary and revoke any such order”.

6. The other sub-sections are immaterial for purposes of this decision and need not be recapitulated. It is apparent on the plain language of the section that the jurisdiction to act under it arises only when the conditions laid down therein exist. It is admitted that the petitioner has not as yet been convicted of an offence punishable under Chapter XVI of the Indian Penal Code, nor has he been committed for trial nor bound over to keep the peace towards the child by any court. The result is the provision of this section cannot be said to be applicable to the facts of the present case.

7. The only other section to which reference can be made as having some bearing on the point under discussion is Sec. 53. The said section runs as follows:

“If it appears to a magistrate duly empowered under this Act, from information on oath or solemn affirmation laid by any person who, in the opinion of the magistrate, is acting in the interests of a child, that there is reasonable cause to suspect that—

(a) ………………………………

(b) that an offence punishable under this Act or under Chapter XVI of the Indian Penal Code has been or is being committed in respect of the child, the magistrate may issue a summons in the first instance against the person or persons in whose case, custody or control such child is, to produce forthwith the said child in court, or may issue a warrant authorizing any police officer named therein to search for such child, and if it is found …… that any offence as aforesaid has been or is being committed in respect of the child, to take him to and detain him in a place of safety until he can be brought before the magistrate, or authorizing any police officer to remove the child with or without search, to a place of safety and detain him there until he can be brought before the magistrate; and the magistrate before whom the child is brought may commit from to the care of a relative or other fit person in like manner as if the person in whose charge or control he was had been committed for trial for an offence punishable under this Act:

………………………………….”

8. The rest of the section need not be mentioned. In order to attract the provision of this section, it is in the first instance necessary that the Magistrate proposing to act under this section must be one duly empowered under the Act; secondly, before he acts there must be before him an information on oath or solemn affirmation. Both these pre-requisites are wanting in this case. To the best of our information no notification empowering all First Class Magistrates to exercise or all any powers under the Act has been issued by the Government.

9. For the reasons stated above, we allow the revision and set aside the order of the Additional Magistrate, Secunderabed.

D.S.P

10. Revision allowed.