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High Court Of Delhi
BANARSI - Appellant
Versus
NEELAM - Respondent
Decided On : 04/28/1969
CRIMINAL PROCEDURE CODE - SECTION 100, 112 - SEARCH WARRANTS - CUSTODY OF CHILD - UNTOUCHABILITY (OFFENCES) ACT - CONTEMPT OF COURT - IRREGULARITY OF PROCEDURE - FAILURE OF JUSTICE - SETTLEMENT OF DIFFERENCES BETWEEN HUSBAND AND WIFE: 1. A Magistrate issuing search warrants under Section 100, Criminal Procedure Code must have reasonable grounds to believe that the confinement in question amounts to an offence. 2. Non-compliance with Section 112, Criminal Procedure Code is not a mere irregularity and can lead to quashing of the impugned order. 3. Failure of justice due to irregularity of procedure assumes importance only after the conclusion of the proceeding and not during its preliminary stages. 4. Courts are disinclined to approve or encourage in advance violations of statutory provisions, even if they are considered to be directory. 5. In cases involving misunderstandings between husband and wife, Magistrates should put their minds seriously to the matter and not deal with them superficially. 6. Husband and wife should try to settle their differences peacefully and amicably, especially for the sake of their child.
Fact of the Case:
The petitioner, Smt. Neelam, was in a dispute with her husband, Shri Banarsi Lal, over the custody of their infant child. Shri Banarsi Lal filed an application before the Sub-Divisional Magistrate (SDM) under Section 100 of the Criminal Procedure Code (CrPC) for the recovery of the child from Smt. Neelam. The SDM issued search warrants for the recovery of the child. Smt. Neelam filed a revision petition before the Additional Sessions Judge (ASJ) challenging the legality of the search warrants. The ASJ recommended that the search warrants be quashed. Shri Banarsi Lal also filed an application for contempt of Court against Smt. Neelam and her two Advocates for allegedly making derogatory remarks against the SDM in the revision petition. The ASJ forwarded the contempt petition to the High Court.
Finding of the Court:
The High Court held that the SDM did not have reasonable grounds to believe that Smt. Neelam's custody of the child amounted to an offence. The Court also held that the non-compliance with Section 112, CrPC, which requires a Magistrate to issue a notice under Section 107, CrPC before proceeding under Section 107, CrPC, was not a mere irregularity and could lead to the quashing of the impugned order. The Court further held that the failure of justice due to irregularity of procedure assumes importance only after the conclusion of the proceeding and not during its preliminary stages. The Court also observed that Courts are disinclined to approve or encourage in advance violations of statutory provisions, even if they are considered to be directory. The Court also expressed concern over the manner in which the Magistrate's Court had dealt with the case and advised the husband and wife to settle their differences peacefully and amicably.
Issues: 1. Whether the SDM had reasonable grounds to believe that Smt. Neelam's custody of the child amounted to an offence? 2. Whether the non-compliance with Section 112, CrPC was a mere irregularity? 3. Whether the failure of justice due to irregularity of procedure assumes importance during the preliminary stages of a proceeding? 4. Whether Courts should approve or encourage in advance violations of statutory provisions, even if they are considered to be directory?
Ratio Decidendi: 1. The Court held that the SDM did not have reasonable grounds to believe that Smt. Neelam's custody of the child amounted to an offence because: - Section 6 of the Hindu Minority and Guardianship Act gives the natural guardianship of a Hindu minor to the father and after him the mother. - The proviso to Section 6 gives the custody of a minor who has not completed the age of five years to the mother. - Smt. Neelam's custody of her child under five years of age cannot be considered to be an offence under Section 100, CrPC. 2. The Court held that the non-compliance with Section 112, CrPC was not a mere irregularity because: - Section 112, CrPC is a mandatory provision. - Non-compliance with Section 112, CrPC deprives the person proceeded against of the opportunity to be heard. - Non-compliance with Section 112, CrPC can lead to a miscarriage of justice. 3. The Court held that the failure of justice due to irregularity of procedure assumes importance only after the conclusion of the proceeding because: - The purpose of a trial is to determine the guilt or innocence of the accused. - Irregularities in the procedure do not necessarily lead to a miscarriage of justice. - The Court can only determine whether there has been a miscarriage of justice after the conclusion of the proceeding. 4. The Court held that Courts should not approve or encourage in advance violations of statutory provisions, even if they are considered to be directory because: - Statutory provisions are intended by the Parliament to be obeyed. - Courts cannot just ignore statutory provisions. - Violating statutory provisions can lead to a miscarriage of justice.
Final Decision: The High Court quashed the search warrants issued by the SDM and the order of the Magistrate issuing notice under Section 107, CrPC.
( 2 ) IN Criminal Revision No. 414 of 1968, the learned Additional Sessions Judge has recommended that the order made by the same learned Sub-Divisional Magistrate on 12-2-1968 to the following effect,
"perused the papers of the file and heard the -learned counsel for the complainant. I am satisfied that there exists an apprehension of breach of peace from the respondents Narinder Nath Kohli, Smt. Neetam, Smt. Lila Kohli and Smt. Bhagwati Kohli. Issue summons for their appearance on 27-2-68. The notice u/s. 107/112 Criminal P. C. be also sent along with the summons. "is unsustainable in law and deserves to be set aside. According to the learned Additional Sessions Judge, there being no legal order under Section 112, Criminal Procedure Code in the instant case, which was a condition precedent for proceeding under Section 107, Criminal Procedure Code, the order issuing the notice is unsustainable.
( 3 ) THE learned Additional Sessions Judge has also forwarded a petition moved by Shri Banarsi Lal against Smt. Neelam and her two counsel, Shri M. L. Nagpal and Miss Usha Mehra for contempt of Court on the ground that in the grounds ot revision tiled before the learned Additional Sessions Judge from the order of the learned Sub-Divisional Magistrate, paragraphs 4 and 5 thereof are couched in language which amounts to contempt of Court.
( 4 ) I would first dispose of the application for contempt of Court because on behalf of the respondent Shri Banarsi Lal, his learned counsel Shri P. N. Lekhi has raised a preliminary point to the effect that the petitioner Smt Neelam. being in contempt, this Court should not hear her on the merits of the revision till she purges herself of the contempt. It may be pointed out that in the application for contempt of Court, presented on behalf of Shri Banarsi Lal, in the Court of the learned Additional Sessions Judge in April, 1968. action was sought not only against Smt Neelam. but also against her two Advocates who had signed the application for revision In this Court also, up to the date of the final hearing, the allegations of contempt of Court against the two Advocates were not dropped. It was only when the two Advocates were actually present in Court that during the course of arguments the learned counsel stated that he did not want to press his application for contempt of Court against the two Advocates.
( 5 ) IT is noteworthy that when the revision application was presented in the Court of the learned Additional Sessions Judge,, the office did not find anything objectionable with the grounds of revision and the revision was duly entertaind without any objection. The two paragraphs in the grounds of revision, which formed the basis of the application (or contempt, of Court, read as under :
"4. That the whole conduct of the learned Magistrate previously in issuing search warrants for the recovery and production of a minor child from the mother and the present proceedings smacks" of the partisanship to the utter disregard of the judicial considerations of the case.
5. That these proceedings are a result of evident misuse of the process of the Criminal Court and are in contraventions to the provisions of the law as laid down in Chapter VIII of the Criminal Procedure Code motivated to harass and coerce the petitioner to come to terms with the respondent who claims to be a Community and Caste fellow of the learned Magistrate. "the learned Addi
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