1. Irreconcilable marital discord between the spouses have ultimately led to the registration of Crime No.509 of 2016 of the Ernakulam Town South Police Station at the instance of the wife. The accused in the aforesaid crime is none other than the husband and he is alleged to have committed offence punishable under section 342 of the IPC. The persons who are alleged to have been wrongfully confined are the minor children of the petitioner and the 2nd respondent.

2. Contending that the registration of the crime against him is a clear abuse or process of Court, the petitioner has filed this petition under section 482 of the Code.

3. The facts indispensable for the consideration and disposal of the instant petition, as is discernible from Annexure-6 complaint filed by the 2nd respondent before the learned Magistrate, are that the petitioner married the 2nd respondent in the year 1999 and two children were born in the wedlock. After stint in various countries abroad, the parties finally settled in Muscat. The relationship between the spouses became strained in course of time. The 2nd respondent alleges that she was mentally and physically harassed. While so on 2.07.2014, the petitioner along with the 2nd respondent and the minor children returned to India and started living at Ernakulam. The petitioner thereafter went back to Muscat. The children were admitted in the Gregorian Public School at Maradu and they were pursuing their education there.

4. While so, the petitioner came down to Ernakulam and stating that the children need to be taken to his father who was lying in his death bed took them away on 28.3.2016. On 31.3.2016, the father of the petitioner expired and hearing the news, the 2nd respondent went to pay her last respects. On 1.4.2016, the 2nd respondent was persuaded to return back home. However, the children were not permitted to go with her. Though the 2nd respondent requested the petitioner to give her custody of the children, her request went unheeded. Though she went to the home of the petitioner to get back the Children, she had to return empty handed. Stating that there was every chance for the children being secretively taken abroad, Annexure-6 complaint was filed seeking for the issuance of a search warrant to locate the confined children and to produce them before the learned Magistrate. It appears that the said complaint was forwarded by the learned Magistrate to the Police under section 156 (3) of the Code, based on which the aforesaid Crime was registered.

5. Sri Santhosh Mathew, the learned counsel appearing for the petitioner, submitted that the allegations made in the First Information Report and the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case under Section 342 of the IPC against the accused. The learned Counsel would submit that as early as on 11.4.2016, by Annexure-1 complaint, the elder child had submitted a complaint before the Circle Inspector of Police, Ernakulam levelling certain allegations against the 2nd respondent and had expressed her desire to be with the petitioner. Reference is also made to Annexure-11 order of this Court in W.P.(C) No. 27468 of 2016 preferred by the petitioner and the minor children seeking issuance of Transfer Certificate from the Gregorian Public School to enable the children to pursue their education abroad. According to the learned Counsel, this Court had passed orders directing the school authorities to issue transfer certificate. The Counsel further urged that O.P. (G & W) No. 758 of 2016 has been filed by the 2nd respondent before the Family Court, Ernakulam seeking custody of the minor children, which is pending. According to the learned Counsel, it is trite that in order to attract the offence under section 342 of the IPC, the detention must be against the will of the person and must be involuntary and the custody of children by the father, who is the natur