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2001 DIGILAW 589 (CAL)

Bidyut Biswas v. Kuheli Biswas & State

2001-09-11

D.P.Sengupta

body2001
JUDGMENT D. P. Sengupta, J.: This revisional application is directed against an order dated 8.6.2001 passed by the learned Sub-Divisional Magistrate, Barrackpore in Misc. Case No. 12/Ex./Barrackpore of 2001. The present opposite party No.1 filed an application in terms of section 342 of the Indian Penal Code read with section 97 of the Code of Criminal Procedure in the court of the learned Sub-Divisional Magistrate, Barrackpore, which was numbered as Misc. Case No. 12/Ex./BKP/08-06-2001. On such application, the learned Sub-Divisional Magistrate passed an order directing the O.C., Titagarh Police Station to enquire into the matter immediately and to submit a report whether there is any wrongful confinement or not. It was further directed that the petitioner would come up for hearing on 18.6.2001 when the O.C. will submit a report and will also make necessary arrangement for production of the child in court. 2. Mr. Sekhar Basu, the learned Advocate, appearing for the petitioner submits that there was no wrongful confinement of the son of the present petitioner and there was no possibility of committing of an offence of wrongful confinement by the petitioner. But the present opposite party No.1 filed a frivolous and vexatious complaint with false allegations by suppressing the material facts. The O.C. of the said Police Station did not submit any report as it was directed by the learned Magistrate but the said police officer illegally handed over the son of the present petitioner to the opposite party No. 1. It is really surprising that although there was no direction by the learned Magistrate to hand-over the child to the custody of the present opposite party No.1 after recovery, the O.C. of the said Police Station handed over the child to the custody of the opposite party No.1 illegally. It is submitted by the learned Advocate appearing for the petitioner that section 97 of the Code of Criminal Procedure applies only when the Magistrate has reason to believe that any person is confined in such circumstances that the confinement amounts to an offence. Issuance of search warrant cannot be contemplated in a case where the confinement does not amount to an offence. Issuance of search warrant cannot be contemplated in a case where the confinement does not amount to an offence. When a father takes away his own son aged about 6 years from the keeping of its own mother, the Magistrate can not exercise jurisdiction under section 97 of the Code of Criminal Procedure, because the father is the natural guardian and therefore can not be said to have committed any offence in taking away of his own son. 3. Mr. Jayanta Dutta, the learned Advocate appearing for the opposite party No.1 submits that since the child has already been handed over to the custody of the mother, i.e. the present opposite party No.1, such custody should not be disturbed in any way by this court and the child may be allowed to remain in the custody of the mother. 4. I have heard the learned Advocate appearing for the petitioner as also the learned Advocate appearing for the opposite party No.1 and the learned Advocate of the State. In my considered view, the impugned order passed by the learned Magistrate suffers from serious illegality. Since the child was in the custody of his father, i.e. the present petitioner, it cannot be said that there was any wrongful confinement. The learned Magistrate can exercise his jurisdiction under section 97 of the Code of Criminal Procedure only in case of any illegal confinement when such confinement amounts to an offence. When a father is in the custody of his own son, he cannot be said to have illegally confined the child. In my considered view, the impugned order passed by the learned Magistrate should not be allowed to stand. Accordingly, I allow the present revisional application and set aside the impugned order passed by the learned Sub-Divisional Magistrate, Barrackpore. 5. Mr. Basu, the learned Advocate appearing for the petitioner submits that since the impugned order is set aside by this Court, this Court should restore status quo ante to the passing of the order impugned by the learned Sub-Divisional Magistrate, Barrackpore and the custody of the child should be given to the custody of his father, namely, the present petitioner. In support of his contention, Mr. Basu relies on a judgment reported in 1996 AIR SCW 1585(Prasanta Kumar Roy Karmakar vs. State of West Bengal and Ors.). In support of his contention, Mr. Basu relies on a judgment reported in 1996 AIR SCW 1585(Prasanta Kumar Roy Karmakar vs. State of West Bengal and Ors.). From a reading of the said judgment, it appears that a private dispute between a landlord and a tenant was taken up in writ jurisdiction and mandatory orders were passed directing the State and the police authorities to allow the writ petitioner (landlord) to have ingress and egress to and from the disputed premises. On the basis of this order, the landlord with the help of police authorities evicted the tenant from his flat. In other words, the landlord was able to get back possession of tenanted premises without taking resort to the usual landlord and tenant proceedings before the appropriate forum in accordance with law. Challenging such order, an appeal was preferred before the Division Bench. The appellate Court allowed the appeal and set aside the impugned order as aforesaid but the said order did not enable the appellant to get back the possession. So, a further application was moved before the court of appeal for necessary relief. But the appellate Court was not inclined to pass any order on such application because the appeal was disposed of finally by the appellate Court. Then a Special Leave Petition was moved before the Hon'ble Apex Court against the aforesaid two orders passed by the appellate Court. The Hon'ble Apex Court was of the view that since by an erroneous order, the appellant was evicted from the possession of the disputed premises, it was the duty of the appeal Court after reversing the order of the trial court to restore the appellant back into possession. It was the duty of the appeal Court to restore status quo ante to the passing of the order on 30.8.93. Accordingly, the Hon'ble Apex Court set aside the order dated 14.1.94 passed by the appeal Court and remanded the case back to the appeal Court. The appeal Court was directed to enquire as to whether the appellant was the person who was actually evicted from the possession on the strength of the order passed on 30.8.93 by the writ court and if so, to restore the said Prasanta Kumar Roy Karmakar back into the possession of the disputed premises. 6. Mr. The appeal Court was directed to enquire as to whether the appellant was the person who was actually evicted from the possession on the strength of the order passed on 30.8.93 by the writ court and if so, to restore the said Prasanta Kumar Roy Karmakar back into the possession of the disputed premises. 6. Mr. Basu next relies on a judgment reported in 1989 Calcutta Criminal Law Reporter (Cal) 62 (Sankar Kumar Mukherjee vs. The State of West Bengal & Ors.). In the said judgment, a learned Single Judge of this Court held as follows:- "Whenever a court entertains a matter and passes an ex parte order and if anything is accomplished pursuant to the said order, as the said court at a subsequent stage finds that such an order ought not to have been made, it is the duty of the court to see that the things are brought to proper shape and size and if anything wrong is committed the same should be undone and the parties should not take an advantage of any order which has been obtained by suppression of facts. The question is as to whether the petitioner has the right to erect the wall or he has no right to erect the wall, the same must be decided by civil court." 7. The next judgment relied on by Mr. Basu is reported in 1997 Calcutta Criminal Law Reporter (Cal) 216. In the said judgment, it was held by the learned Singe Judge of this Court, as follows:- "It is an admitted position that Md. Nasim in his petition under section 144 Cr. P.C. admitted that he had given possession of the disputed room to Salman Bibi and Salman Bibi continued to remain in possession of the room. It therefore follows that Md. Nasim dispossessed Salman Bibi because of the order passed by the learned Magistrate under section 144(2), Cr. Nasim in his petition under section 144 Cr. P.C. admitted that he had given possession of the disputed room to Salman Bibi and Salman Bibi continued to remain in possession of the room. It therefore follows that Md. Nasim dispossessed Salman Bibi because of the order passed by the learned Magistrate under section 144(2), Cr. P.C. Maxim Altus Curiae Nemainem Grauabit clearly means that an act of court shall prejudice no man, The Supreme Court in the case of Jang Singh vs. Brijlal, (1964)2 SCR 149, has laid down that there is no higher principle for the guidance of Court than one that no act of Courts shall harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court, he should be restored to the possession, he would have occupied but for that mistake." 8. Relying upon the aforesaid judgments, it is submitted by Mr. Basu that since the illegal order, by which the child was taken away from the custody of the present petitioner/father and was handed over to the custody of the present opposite party No. 1/mother, is set aside by this Court, this Court should pass an appropriate order directing that the child should be handed over to the custody of his father, i.e. the present petitioner immediately. 9. I find sufficient merits in the submissions of Mr. Basu, the learned Advocate appearing for the petitioner. Accordingly, I direct the learned Magistrate to take immediate steps in this regard. The learned Magistrate will direct the opposite party No. 1/ mother to produce the child before him and the learned Magistrate is further directed to hand over the child to the custody of the present petitioner/father. The present revisional application is allowed to the extent as indicated above and the impugned order is set aside. Criminal section is directed to supply the urgent certified copy of this order, if applied for, to the learned Advocates appearing for the respective parties at an early date. Revisional application allowed.