1 2025:CGHC:34830-DB NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPCR No. 421 of 2025 1 - Smt. Rakhi Sinha W/o Abhinav Shrivastava Aged About 43 Years R/o M-293, Shreya Boutique, Gautam Nagar, Bhopal, Near Tea And Tea, Police Station - Govindpura, District - Bhopal (M.P.) ... Petitioner(s) versus 1 - State Of Chhattisgarh Through The Secretary, Home Department, Mantralaya, Mahanadi Bhawan, Atal Nagar, Nawa Raipur (C.G.) 2 - Collector Raipur, District - Raipur (C.G.) 3 - Sub-Divisional Magistrate Raipur, District - Raipur (C.G.) 4 - Station House Officer Police Station - City Kotwali, Raipur, District - Raipur (C.G.) 5 - Abhinav Shrivastava S/o Late Shri Krishna Kumar Shrivastava Aged About 50 Years R/o G-13, P.W.D. Colony, Bairan Bazar, Raipur, District - Raipur, Chhattisgarh ... Respondent(s) (Cause title taken from CIS) For Petitioner(s) : Shri Dharmesh Shrivastava, Advocate. For Respondents Nos. 1 to 4 : Shri S. S. Baghel, Dy. Govt. Advocate. For Respondent No. 5 : Shri Sharad Mishra, Advocate. SHOAIB ANWAR Digitally signed by SHOAIB ANWAR Date: 2025.07.23 10:34:42 +0530 2 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha , Chief Justice 22.07.2025 1. Heard Shri Dharmesh Shrivastava, learned counsel for the petitioner. Also heard Shri S.S. Baghel, learned Dy. Govt. Advocate and Shri Sharad Mishra, learned counsel for the respondent no. 5. 2. The present WPCR. has been filed with the following prayer:- “10.1 That, this Hon'ble Court may kindly be pleased to call for the entire records pertaining to the case of the petitioner for perusal of this Hon'ble Court. 10.2 That, this Hon'ble Court may kindly be pleased to issue a writ in the nature of mandamus and the case No. 553/2025 under Section 100 of Bharatiya Nagarik Suraksha Sanhita, 2023 pending before the learned Sub-Divisional Magistrate (City), Raipur, District - Raipur (C.G.), may kindly be quashed. 10.3 That, this Hon'ble Court further may kindly be the search warrant dated quash to pleased 16.07.2025 issued by the learned Sub-Divisional Magistrate (City), Raipur, District - Raipur (C.G.). 10.4 That, this Hon'ble Court further may kindly be pleased to pass an appropriate interim order directing the 3 respondents to continue the study of child in Delhi Public School, Bhopal (M.P.) where the mother has got her daughter admitted in the school and further refrain from harassing or threatening the petitioner during the pendency of this petition. 10.5 That, any other writs and direction which this Hon'ble Court deems fit and just in the facts and circumstances of the case be granted to the petitioner. 3. Learned counsel for the petitioner would submit that the impugned proceedings initiated and continued before the learned Sub-Divisional Magistrate (City), Raipur, District Raipur (C.G.) as Case No. 553/2025 under Section 100 of Bharatiya Nagarik Suraksha Sanhita, 2023 whereby a search warrant dated 16.07.2025 has been issued against the petitioner and the search warrant was given to Station House Officer, Police Station - City Kotwali, Raipur, District Raipur (C.G.) with an instruction to get the petitioner and her daughter appeared before him on or before 06.08.2025. According to the petitioner, though the dispute regarding custody of child is pending before the court of law and in compliance of the search warrant dated 16.07.2025, the respondent No.4 entered into the rental room of the petitioner with about 4-5 police personnel and threatened the owner of the house to give 4 information regarding the petitioner. The entire act is going on due to high approach of the respondent No.5/husband therefore, the proceeding along with search warrant may be quashed. 4. Learned counsel for the respondent no. 5 submits that the order dated 16.07.2025 passed by the learned Sub-Divisional Magistrate (City) Raipur is just and proper as the petitioner has violated the order passed by the Family Court dated 21.10.2024 wherein the family Court directed the husband to arrange a video call between the child and the mother (petitioner) everyday for about 10-15 minutes and further directed the husband to handover the child to mother on every Saturday and Sunday and will take back her on monday morning. According to the husband though he is complying with the order of the family court in its true perspective, but the wife/petitioner in complete defiance of the order of the family court forcibly took away the custody of the child, from the husband, and taken her to Bhopal (M.P.) 5. We have heard learned counsel for the parties. 6. The writ petition has been filed by the petitioner/wife mainly questioning the proceeding drawn by the SDM under Section 5 100 of BNSS. To consider the proceedings drawn by the SDM are just and proper or not the provision of 100 of B.N.S.S. has to be seen. The same is quoted below:- “100. Search for persons wrongfully confined. - If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.” 7. Looking to the provision prescribed under Section 100, it appears that though the respondent no. 5/husband filed the proceedings under Section 100 of B.N.S.S. alleging illegal confinement of daughter, but, in fact, the proceedings between the parties about the custody of child is still sub- judice before this Court in FA(MAT) No. 382/2024, which has been filed by the petitioner questioning the order of the family court. Thus, the respondent no. 5 without availing the remedy available to him has filed the application under Section 100 before the SDM and the said SDM proceeded ignoring the fact 6 that the dispute regarding custody of child has been finalised by the family court and against the said order the petitioner approached this Court by filing FA(MAT) No. 382/2024. 8. Having considered the entire facts and circumstances of the case and particularly considering the order impugned/search warrant, it appears that the matter is sub-judice before this Court and the husband ought to have moved the sutiable application before the appropriate court, if any, defiance committed by the wife in respect of custody of child and even without appreciating the said fact the Sub-Divisional Magistrate issued a search warrant, that too without following the due process of law and without looking to the fact that the matter is pending before the family Court. 9. In view of the above, the present petition is allowed and the impugned search warrant dated 16.07.2025 issued by the Sub- Divisional Magistrate Raipur is set-aside, however, leaving it open to the respondent no. 5/husband to appear before the appropriate Court and move a suitable application for redressal of his grievance, if any. Sd/- Sd/- (Bibhu Datta Guru) (Ramesh Sinha) Judge Chief Justice