The court held that a Magistrate has wide powers to take cognizance of an offence under Section 190 of the Code of Criminal Procedure, even without a complaint, application, or report being made to him.

S.C. Mathur, J.

1. THIS is an application under Sections 482 and 483 of the Code of Criminal Procedure. The applicants have prayed for quashing proceedings pending against them under Section 365 of the Indian Penal Code in the Court of Chief Judicial Magistrate, Sultanpur, opposite party no. 2. These proceedings arose from First Information Report filed by opposite party no. 1. The dispute between the parties centres round a minor boy Jai Prakash. In order to dispose off this application certain facts may be stated.

2. JAI Prakash, the minor boy is the son of applicant No. 1 Om Prakash Srivastava. Applicant no. 2 Sri Ram Srivastava is the father of Om Prakash Srivastava, that is he is the grand f ather of the minor. Sri Prakash, applicant no. 3, is brother of Om Prakash Srivastava, that is he is the uncle of the minor. Opposite party no. 1 Dudh Nath Srivastava is maternal grand father (Nana of the minor). On 23rd May, 1966 the First Information Report was lodged by opposite party no. 1 with the allegation that on 21st March, 1976 at 5 P.M. the applicant had kidnapped the minor boy JAI Prakash. In this First Information Report the age of the minor was disclosed as four years. It was asserted that the custody of the minor had been obtained through legal proceedings. On the basis of this First Information Report the police traced out the boy and handed over the minor to Smt. Usha Srivastava, the mother of the minor. Smt. Usha Srivastava is daughter of Dudh Nath Srivastava, opposite party no. 1. On 30th May, 1966 the police of Sultanpur submitted a final report to the Chief Judicial Magistrate, Sultanpur for acceptance. Before this final report could be accepted, an application was moved on 21st February, 1977 by opposite party no. 1 praying that the final report submitted by the police be not accepted. The learned Magistrate after going through the application moved on behalf of opposite party no. 1 and after perusing the case diary, ordered that the applicant be summoned for 27-4-1977. The applicant, instead of putting in appearance before Chief Judicial Magistrate approached this court by moving application under Sections 482 and 483 of the Code of Criminal Procedure. Sri T. N. Gupta, learned counsel for the applicants asserted that under the provisions of Hindu Minority and Guardianship Act the father is the guardian and therefore entitled to the custody of the minor boy and therefore no case under Section 365 IPC could be made out against the person who was the natural guardian of the minor. The learned counsel relied upon Section 6 of the said Act. Section 6 of the Act provides as follows :

"The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are- (a) in the case of a boy or an unmarried girl, the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother......"

3. IN order to bring his case within the ambit of Clause (a) the learned counsel relied upon the deposition made by Smt. Usha Srivastava on 2-11- 1977 in the court of Civil Judge, Malihabad, Lucknow in Regular Suit No. 114 of 1976 wherein she gave out the date of birth of the minor as 8-3- 1971. A certified copy of this deposition has been filed as Annexure No. 1 to the supplementary affidavit dated 29th July, 1978 filed by Om Prakash Srivastava. The learned Government Advocate urged that this document has not yet been brought on the record of the court below and therefore, in proceeding under Section 482 of the Code of Criminal Procedure this document cannot be relied upon. The learned Government Advocate urged that in the present proceeding only that evidence can be taken into consideration which is already on the record of the court below. IN support of his contention he relied upon a decision of this court in the case of Gulzar Singh v