The High Court of Bombay has upheld the validity of a search warrant issued under the Bharatiya Nagarik Suraksha Sanhita (BNSS) to recover a child who was allegedly forcibly taken away from the mother’s custody and confined at another place.

High Court Restores Magistrate’s Order:

Justice Madhav J. Jamdar restored the order passed by the Additional Chief Judicial Magistrate (ACJM), Malegaon, and quashed the order of the Additional Sessions Judge, Malegaon, passed in a criminal revision application. The Court held that the Additional Sessions Judge should not have interfered with the Magistrate’s order and observed:

“Thus, in the facts and circumstances, the Additional Sessions Judge should not have interfered in the order of the learned Magistrate.”

How the Case Began:

The case arose from an order passed by the Magistrate under Section 100 of the BNSS. The Magistrate directed that the respondent-husband’s house be searched and that if the two-and-a-half-year-old son of the petitioner-wife and respondent-husband was found there, he should be produced before the Court. The child was subsequently brought before the Court, and his custody was handed over to the mother.

Sessions Court’s View:

The husband challenged this order before the Additional Sessions Judge. While the Additional Sessions Judge observed that the child was only about three years old and that, considering his welfare, he should remain with the mother, the court held that Section 100 of the BNSS did not apply. It reasoned that a child staying with either parent did not amount to “confinement.”

High Court Disagrees:

The High Court disagreed with this view. After examining the pleadings, the Court noted that the wife had specifically alleged that “the Respondent forcefully took away the child from the custody of the mother by showing the revolver and confined him at another place.” The High Court held that the Additional Sessions Judge had completely ignored these allegations and that the order was “perverse and illegal.”

The High Court also found that the Magistrate’s order was valid and reiterated:

“Thus, in the facts and circumstances, the Additional Sessions Judge should not have interfered in the order of the learned Magistrate.”

Child Remains With Mother:

The Court further noted that a Single Judge had earlier issued notice to the respondents and stayed the impugned order. As a result, the child is currently with the mother.

Revision Order Set Aside:

Accordingly, the High Court restored the Magistrate’s order and set aside the judgment of the Additional Sessions Judge, emphasising that the Magistrate’s order did not warrant interference.

Case Details- SHAIKH SHAGUFTA NADEEM AHMED Vs NADEEM ABDUL ABDUL RASHID AND ANR