A father cannot be guilty of an offence under Section 361, I. P. C. as long as there is no divestment of his right of guardianship.

( 1 ) ONE Vipin Menon has filed this petition under Section 482, Cr. P. C. to set aside the order dated 15-5-1992 passed by the Chief Metropolitan Magistrate, Bangalore City, in Criminal Misc. No. 198/1992. Though the petition was filed only against the State, subsequently as directed by the Court, Sri V. P. R. Nambiar, father-in-law of the petitioner, has been impleaded as the second respondent.

( 2 ) THE facts that are not in dispute maybe set out briefly as follows : the petitioner is the father of a minor female child, named Soumya. She is aged about seven years. Respondent 2 is the maternal grand-father of the minor child. Soumya was residing with V. P. R. Nambiar for some time prior to 29-4-1992. On 29-4-1992, Nambiar gave a complaint to J. C. Nagar Police Station alleging that the petitioner and his sisters had kidnapped Soumya at about 10. 30 a. m. on that day. The police did not register a case either under Section 154, Cr. P. C. or under Section 155, Cr. P. C. on the basis of that complaint as no offence was disclosed. No F. I. R. was sent to the Magistrate. But, the petition was numbered as Criminal Misc. No. 198/1992 and the P. S. I. attached to the J. C. Nagar Police Station took custody of the child from the petitioner on 6-5-1992 and on the same day produced the child before the Chief Metropolitan Magistrate, Bangalore, with a report. In the report, it is clearly mentioned that no offence under Section 361, I. P. C. has been made out.

( 3 ) THE learned Magistrate passed an order on that day itself, handing over the custody of the child to the petitioner for the time being. He also directed issuance of notice to R-2 Sri Nambiar On 12-5-1992, the petitioner and R-2 appeared before the Magistrate and the case was adjourned to 15-5-1992. The petitioner was directed to produce the child before the Magistrate on 15-5-1992. On 15-5-1992, the petitioner did not appear before the Court with the child. The learned Magistrate adjourned the case to 3. 00 p. m. The request made by the advocate for the petitioner in the morning session had been refused by the Magistrate. In the meanwhile, before the Court reassembled after lunch-break, the Magistrate received a telegram from the petitioner saying that he was unavoidably held up in Bombay and seeking adjournment of the case. The Magistrate, however, did not grant adjournment. But proceeded to pass the impugned order on that day itself. The order shows that the Magistrate came to the conclusion on the basis of the order passed by the Family Court, Bangalore, that Sri Nambiar was entitled to the custody of the child. He, therefore, directed the petitioner to handover the custody of the child to the police so that the police in turn may handover the custody of the child to Sri Nambiar, R-2 herein. He further directed that if the petitioner failed to produce the child before the police, to register case against the petitioner and also for taking steps for treating the petitioner as a proclaimed offender. He terminated the proceedings for the time being, reserving liberty to R-2 to move for contempt against the petitioner.

( 4 ) SRI B. V. Acharya, learned Senior Counsel appearing for the petitioner, contends that the proceedings before the Magistrate was wholly without jurisdiction and not warranted by any provision of the Code of Criminal Procedure or any other provision of law. It is also his contention that the police had exceeded their limits in taking the custody of the minor child from her father and producing her before the Magistrate especially when no case has been registered against the petitioner. Sri Narayana Rao, learned senior counsel for R-2,contends that the petitioner is guilty of kidnapping as he had been divested of his right of guardianship as on 29-4-1992 and a person who has been guilty of a serious offence like kidnapping cannot be given any relief under Section 482, Cr. P. C.

( 5 ) IT may be useful to refer to a pending proceeding between the