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2007 DIGILAW 108 (CAL)

SUDARSHAN SAU v. STATE OF WEST BENGAL

2007-02-21

PRAVENDU NARAYAN SINHA

body2007
( 1 ) THE revisional application filed by the petitioners is directed against the order dated 7. 12. 06 passed by the learned Judicial Magistrate, 2nd Court, tamluk in C. R. Case No. 663 of 2005 thereby issuing search warrant against the petitioners for the recovery of the minor son of complainant. O. P. No. 2 from their custody. When the petitioners moved the revisional application in this Court on 21. 12. 06 this Court directed stay of the impugned order dated 7. 12. 06 passed by the learned Magistrate and being aggrieved by the said interim order the O. P. No. 2 complainant has filed an application for vacating the interim order being CRAN No. 153 of 2007. As the facts and points of law involved in the revisional application and the application being CRAN No. 153 of 2007 are identical, I intend to dispose of both the revisional application and the application for vacating the interim order by this common judgment and order. ( 2 ) MR. Subir Ganguly, the learned Advocate for the petitioners submitted that in the present matter provisions of Section 97 of the Code of criminal Procedure (in short the Code) have no manner of application. The minor son of the O. P. No. 2 is in custody of maternal grand parents, the present petitioners. Their daughter was the wife of O. P. No. 2 who expired. After death of their daughter they brought the minor son of O. P. No. 2 to their house for the welfare of the child as there was no proper person to look alter the child and to take care of the child. The child was allegedly taken away by the petitioners on 25. 11. 05 and upto date there was no adverse report against the petitioners to the effect that they tortured the child or did not look after the welfare of the child. ( 3 ) MR. Ganguly further contended that in the application filed by O. P. No. 2 for vacating the interim order everywhere it has been stated by the complainant on the welfare of the child. It is true that welfare of the child is the paramount consideration but a Magistrate cannot decide welfare of the child. Welfare of the child is the exclusive jurisdiction of competent Civil Court of the district or the District Court. It is true that welfare of the child is the paramount consideration but a Magistrate cannot decide welfare of the child. Welfare of the child is the exclusive jurisdiction of competent Civil Court of the district or the District Court. The learned Magistrate did not consider that the custody of the child with the maternal grand parents does not amount to an act constituting an offence. The learned Magistrate failed to appreciate the fact that the child is not in custody of any criminal or antisocial but, the child is in custody of grand parents who are looking after the care, protection and welfare of the child. The learned Magistrate without applying proper judicial mind issued the search warrant. The complaint was filed on 19. 12. 05 and on 20. 12. 05 search warrant was issued and the said order was challenged before this Court in crr No, 428 of 2006. This Court directed the learned Magistrate to hear both parties in accordance with law. Challenging, the order of this Court, the O. P. No. 2 moved the Hon'ble Supreme Court in S. L. P. No. 5416/06. The Supreme court by order dated 17. 11. 06 dismissed the said S. L. P. thereafter, the learned magistrate by the impugned order dated 7. 12. 06 issued fresh search warrant for the recovery of the child which is illegal and the learned Magistrate did not take into consideration the observation of this Court passed in earlier CRR no. 428/06. The order of the learned Magistrate being bad in law and without jurisdiction should bo set aside. ( 4 ) MR. Himangshu De, the learned Advocate for O. P. No. 2 submitted that on the basis of complaint lodged by the O. P. No. 2, the learned Magistrate had already taken cognizance of offence under Section 342 of the Indian Penal code (in short the. P. C.) on 19. 12. 05. Challenging the order of the learned magistrate taking cognizance of offence no revisional application was preferred by the petitioners either before the Sessions Court or before this Court. At the relevant time the child was two years three months and the child of the O. P. No. 2 was detained by the grand parents namely, the petitioners. 12. 05. Challenging the order of the learned magistrate taking cognizance of offence no revisional application was preferred by the petitioners either before the Sessions Court or before this Court. At the relevant time the child was two years three months and the child of the O. P. No. 2 was detained by the grand parents namely, the petitioners. On the basis of prayer of O. P. No. 2 the learned Magistrate issued search warrant for the recovery of the child by order dated 20. 12. 05. Challenging the said order the petitioners preferred a revision before the learned Sessions Judge. Purba medinipur and the learned Sessions Judge by order dated 27. 1. 06 passed in criminal Revision No. 7/06 dismissed the revision and affirmed the order dated 20. 12. 05 passed by the learned Magistrate issuing search warrant for the recovery of the child. This Court while disposing of the previous revisional application made some remarks concerning the custody of the child and the o. P. No. 2 being aggrieved by such observations preferred one SLP bearing no. 5416/06 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by order dated 17. 11. 06 dismissed the S. L. P. , but held that, the observations made by this Court were wholly unnecessary and should not be taken into account in any pending or future proceeding. The O. P. No. 2 thereafter again prayed for issue of search warrant for the recovery of his minor son and the learned Magistrate by his order dated 7. 12. 00 issued the search warrant for the recovery of the minor son of petitioner from the custody of petitioners. ( 5 ) MR. De next contended that mother of the child died a natural death due to cancer. After death of the mother, the paternal grand mother and wife of elder brother of O. P. No. 2 were looking after the child. The wife of O. P. No. 2 expired on 15. 10. 05 and on 25. 11. 05, when the O. P. No. 2 was absent in home the petitioners came to his house and took away the child. Thereafter, the O. P. No. 2 requested his father-in-law and mother-in-law to return the child into his 'custody but the petitioners did not return the child into his custody. The conduct and the act of the petitioners clearly constitutes an offence. Thereafter, the O. P. No. 2 requested his father-in-law and mother-in-law to return the child into his 'custody but the petitioners did not return the child into his custody. The conduct and the act of the petitioners clearly constitutes an offence. Before death of their daughter the petitioners did not use to look after the child and did hot make any enquiry about the child. The act of the accused persons was an offence and the learned Magistrate rightly issued search warrant for the recovery of the child. There is no illegality in the order of the learned Magistrate and the revisional application having no merit should be dismissed. In support of his contention Mr. De relied upon the decisions in Gohar Begum v. Suggi reported in AIR 1960 SC 93 , Zahirul Hassan v. State of Uttar Pradesh reported in 1988 Cr LJ 230 and Krishna Prashad Paul v. State of West Bengal reported in (2005)4 Cal HN 308. ( 6 ) MR. Swapan Kumar Mallick, the learned Advocate appearing for the State submitted that the minor son of O. P. No. 2 was born on 6th October, 2003. His mother,. e. , wife of O. P. No. 2 died on 15. 10. 05. Since the birth the child was in custody of his father upto 25. 11. 05. On 25. 11. 05 the petitioners, who are maternal grand parents of the child, came to house of O. P. No. 2 during his absence and took away the child and since then the child is in custody of the petitioners. It appears from the submissions of the learned advocate for the petitioners that already one application under the Guardians and Wards Act has been filed before the District Judge which has been registered as Act VIII Case No. 2 of 2007. Before the civil Court the paramount consideration would be the welfare of the child. The father is the natural guardian of the child and in spite of request by O. P. No. 2 the petitioners did not return the child into custody of O. P. No. 2. The act of the petitioners is unlawful and the learned Magistrate did not act illegally by issuing search warrant for recovery of the child. The revisional application accordingly having no merit should be dismissed. The act of the petitioners is unlawful and the learned Magistrate did not act illegally by issuing search warrant for recovery of the child. The revisional application accordingly having no merit should be dismissed. ( 7 ) I have duly considered the submissions of the learned Advocates for the parties and perused the contents of the revisional application and the application being CRAN No. 153 of 2007 and the annexures of both the applications as well as the decisions placed by Mr. De, the learned Advocate for the O. P. No. 2. It is admitted that the wife of O. P. No. 2 was the daughter of the petitioners and her marriage with O. P. No. 2 was solemnised on 7. 7. 02. The minor son of the O. P. No. 2 was born on 6. 10. 03. The wife of O. P. No. 2 and the mother of the child expired on 15. 10. 05 due to cancer. It was not a case of unnatural death of mother of the child but, it was a natural death of the mother of the child. It is also undisputed that after the death of mother of the child, the mother of the O. P. No. 2 and his 'boudi'. e. the wife of elder brother of O. P. No. 2 were looking after the child. On 25. 11. 05 when O. P. No. 2 was absent in his house the petitioners, who are the maternal grand parents of the child came to the house of O. P. No. 2 and took away the child from old mother of O. P. No. 2 making some false representation to her. Thereafter, the O. P. No. 2, the father of the minor son made several attempts to take back the child and requested the petitioners to return the child but they refused to return the child. ( 8 ) IT appears from the materials on record that thereafter, the O. P. No. 2 lodged a complaint before the learned Chief Judicial Magistrate, Purba medinipur under Section 341/342/109 of the. P. C. which was registered as c. R. Case No. 663/05. The learned Magistrate took cognisance of offence on 19,12. 05 and on the prayer of the complainant. e. O. P. No, 2 issued search warrant by order dated 20. 12. P. C. which was registered as c. R. Case No. 663/05. The learned Magistrate took cognisance of offence on 19,12. 05 and on the prayer of the complainant. e. O. P. No, 2 issued search warrant by order dated 20. 12. 05 under Section 97 of the Code for the recovery of the child from the custody of the petitioners for handing over the child to custody of complainant. Challenging the order of the learned Magistrate the petitioners preferred Criminal Revision No. 7 of 2006 before the learned sessions Judge, Purba Medinipur and the learned Sessions Judge by his order dated 27. 1. 06 dismissed the revision. Challenging the order of the learned sessions Judge the petitioners preferred second revision before this Court being CRR No. 428 of 2006 and this Court by order dated 16th March, 2006 declined to interfere into the revisional application as it was a second revision and directed the parties to agitate all the points before the Court of the learned magistrate at appropriate stage. At the time of disposing the revisional application this Court made some observations in the body of the order and being dissatisfied with such observations the O. P. No. 2 preferred SLP No. 5416 of 2006 before the Hon'ble Supreme Court. The Hon'ble Supreme Court by order dated 17. 11. 06 dismissed the S. L. P. but observed that, the observations made by this Court were wholly unnecessary and should not be taken into account in any pending or future proceedings. Thereafter, the petitioners again requested the learned Magistrate for issue of search warrant by application and the learned Magistrate on the basis of such application by order dated 7. 12. 06 issued search warrant under Section 97 of the Code for the recovery of the child from the custody of the petitioners. Challenging the order of the learned Magistrate dated 7. 12. 06 the petitioners have approached this Court through the present revisional application. ( 9 ) THE age of the child was two years one month when he was allegedly taken away by the maternal grand parents. e. , the petitioners and subsequent refusal to return the child to custody of O. P. No. 2 are such an act of the petitioners which prima facie constitutes elements of offence. ( 9 ) THE age of the child was two years one month when he was allegedly taken away by the maternal grand parents. e. , the petitioners and subsequent refusal to return the child to custody of O. P. No. 2 are such an act of the petitioners which prima facie constitutes elements of offence. In view of section 6 (a) of the Hindu Minority and Guardianship Act, father is the natural guardian of a Hindu Minor and there is a proviso to that section which lays down that the custody of a minor below five years in age shall ordinarily be with the mother. In the present case the mother. e. wife of O. P. No. 2 is dead and she died a natural death. It is not a case that the daughter of the petitioners, who was wife of O. P. No. 2, died unnatural death or committed suicide due to torture for demand of dowry and over that issue the petitioners thought it fit to take away the child from the custody of father. It is also evident from the materials on record that O. P. No. 2 has his mother alive who is the paternal grand mother of the child. Besides that, the wife of elder brother of O. P. No. 2 was also looking after the child. The child in question was, therefore, not neglected. It is not such a case that there was none in the house of O. P. No. 2 to take care of the child and to look after the child for his welfare. ( 10 ) IT is evident that the mother of the child died on 15. 10. 05. On 25. 11. 05 the petitioners came to the house of O. P. No, 2 and took away the child from the mother of O. P. No. 2 giving her some false assurance and false representation when O. P. No. 2 was absent in the house. From the complaint it is evident that the O. P. No. 2 on 26. 11. 05, 15. 12. 05 and 18. 12. 05 went to his father-in-law's house to take back the child but, the petitioners did not return the child and rather disclosed that they would not handover custody of the child in favour of O. P. No. 2. It is also clear that the order of the learned magistrate dated 19. 11. 05, 15. 12. 05 and 18. 12. 05 went to his father-in-law's house to take back the child but, the petitioners did not return the child and rather disclosed that they would not handover custody of the child in favour of O. P. No. 2. It is also clear that the order of the learned magistrate dated 19. 12. 05 taking cognizance in respect of offence under section 341/342/109 of the. P. C. was not challenged at all. The consideration of the aforesaid facts find circumstances reveal clearly that action of the petitioners in taking away the minor son of O. P. No. 2, who was aged two years one month nineteen days only on 25. 11. 05 and subsequent refusal by them to handover the child to his natural guardian. e the father is an act which constitutes an offence. The learned Magistrate very rightly in this matter issued search warrant for the recovery of the child. The O. P. No. 2 being the father is the natural guardian and the child should be in the custody of the father when the O. P. No. 2 has his own mother and wife of elder brother to look after the said child. ( 11 ) WELFARE of the child is a matter of Civil Court and not a matter of criminal Court and a Magistrate at the stage of issuing search warrant for recovery of the child is not to consider welfare of the child but, he has to consider whether the action of the accused or O. P. constitutes elements of offence justifying issue of search warrant. The learned Magistrate in this matter on consideration of the facts and circumstances rightly issued the search warrant and there in no ground at all to interfere with the order of the learned magistrate issuing search warrant for the recovery of minor son of O. P. No. 2 from the custody of petitioners. ( 12 ) IN this connection the decisions cited by Mr. De are pertinent. In gohar Begum V. Suggl (supra) the Supreme Court observed that, the fact that the appellant had a right to relief under the Guardians and Wards Act was no justification for denying her the clear right for the custody of her child under section 491 of the Code. De are pertinent. In gohar Begum V. Suggl (supra) the Supreme Court observed that, the fact that the appellant had a right to relief under the Guardians and Wards Act was no justification for denying her the clear right for the custody of her child under section 491 of the Code. At that time Section 491 of the Code, 1898 was also a relevant section though Section 97 of the Code was there under the old Act. ( 13 ) THE decision of the Allahabad High Court in Zahirul Hassan v. State of Uttar Pradesh (supra) reveals that the father of the child of 1 years forcibly removed the child from custody of mother. The mother filed an application under Section 97 of the Code and the matter went up to the Hon'ble allahabad High Court. The High Court observed that forcible removal of the child from the custody of the mother amounts to wrongful confinement and accordingly the provisions of Section 97 of the Code were attracted and the learned Magistrate rightly issued search warrant for the recovery of the child. ( 14 ) IN this connection, I intend to refer few more decisions. In Banarsi lal v. Smt. Neelam reported in AIR 1969 Delhi 304 the child was in custody of the mother who was living separately due to differences with her husband. The father namely, Banarsi Lal filed an application for recovery of the child from mother's custody and under Section 100 of the old Code of 1898 the learned Magistrate issued search warrant for the recovery of the child. The delhi High Court observed that mother's custody of her child under five years of age does not constitute confinement amounting to an offence and the learned magistrate acted illegally by issuing search warrant without assigning any reason. In Purushottam Wamanrao Thakur v. Warsha reported in 1992 Cr LJ 1688 the mother with two children below the age of five were residing in her parents house. The father came to his father-in-law's house and look away the children on the assurance of returning them to her custody soon. Ultimately, the father did not return custody of the children to the mother. Thereafter, the mother filed application for issue of search warrant under Section 97 of the code for the recovery of children from custody of father. The father came to his father-in-law's house and look away the children on the assurance of returning them to her custody soon. Ultimately, the father did not return custody of the children to the mother. Thereafter, the mother filed application for issue of search warrant under Section 97 of the code for the recovery of children from custody of father. The matter went upto the Hon'ble High Court and the Bombay High Court held that, action of the father removing the children aged five and two years respectively from the custody of mother and ultimate refusal to return the children to custody of mother amounts to wrongful confinement and issue of search warrant was justified. The principle of law in such a matter discussed above clearly reveals that a Magistrate has the right and jurisdiction to issue search warrant for the recovery of minor child, if the action of the accused or the person against whom search warrant has been issued amounts to wrongful confinement constituting an offence. ( 15 ) IN the instant matter father was the natural guardian and during his absence the petitioners, who were the maternal grand parents took away the child from the house of O. P. No. 2 and from custody of paternal grand mother of the child on false assurance and representation. The father of the minor child namely, O. P. No. 2 approached the petitioners several times for return of the child, but they did not return the child to the custody of O. P. No. 2, who was the natural guardian of the child. The action of the petitioners clearly amounts to wrongful confinement of the minor child and is an act which constitutes elements of offence. The learned Magistrate in this matter rightly exercised his jurisdiction by issuing search warrant for the recovery of the child from the custody of the petitioners. ( 16 ) FROM the submission of the learned Advocate for the petitioners it appears that one Tusar Sau has filed a case against O. P. No. 2 under the guardians and Wards Act and it has been registered as Act VIII Case No. 2 of 2007 and the said case is pending before the concerned District Judge. ( 16 ) FROM the submission of the learned Advocate for the petitioners it appears that one Tusar Sau has filed a case against O. P. No. 2 under the guardians and Wards Act and it has been registered as Act VIII Case No. 2 of 2007 and the said case is pending before the concerned District Judge. The civil Court will consider the welfare of the child and in view of the decision of the Supreme Court in Gohar Begum v. Suggi (supra) the filing of the case under the Guardians and Wards Act by one Tusar Sau against O. P. No. 2 cannot be a ground to deny the right of O. P. No. 2 for the custody of his minor son. The Civil Court will consider the welfare of the child and will pass necessary order in accordance with law after hearing both parties on the basis of evidence and materials on record. In this matter this Court does not find any ground to interfere with the order of the learned Magistrate and the order of the learned magistrate issuing search warrant for the recovery of the minor child is correct, proper and legal. ( 17 ) IN view of the aforesaid discussion the revisional application having no merit fails and is dismissed. The application by O. P. No. 2 for vacating the interim order being CRAN No. 153 of 2007 becomes redundant after dismissal of the revisional application and the same also stands disposed of accordingly. This order would govern both the CRR No. 331 of 2007 and CRAN No. 153 of 2007. ( 18 ) THE observations made by this Court are only for the purpose of disposal of the present revisional application concerning the merit of Section 97 of the Code and this Court did not enter into merit of the complaint case being G. R. No. 663 of 2005 and the learned Magistrate who would proceed with the main complaint case being C. R. No. 663 of 2005 would arrive at his own decision without being influenced in any way by the observations of this court. ( 19 ) CRIMINAL Section is directed to forward a copy of this order to the learned Judicial Magistrate, 2nd Court, Tamluk for information and necessary action. .