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2008 DIGILAW 975 (CAL)

Dipali Chatterjee (Ghosh) v. STATE OF WEST BENGAL

2008-10-01

SADHAN KUMAR GUPTA

body2008
JUDGMENT:- (1.) Both the revisional applications were directed to be heard analogously by the order dated 17.12.2007. (2.) It is the case of the petitioners of CRR No. 3861 of 2007 that the opposite party No. 2, being the defacto-complainant, submitted a petition of complaint before the learned Additional Chief Judicial Magistrate, Serampore, Hooghly being C.R. case No. 518 of 2007 against the petitioners alleging therein that she was the legally married wife of late Kalyan Chatterjee and such marriage took place on 5.8.2001 as per Hindu Rites and Customs. Out of the said wedlock, a male child was born viz. Abhisekh Chatterjee, on 30.6.2002. It is alleged in the petition of complaint that due to constant mental and physical torture in the matrimonial house, the petitioner had to live in a rented house with her husband and minor son for about two years. Subsequently, she again returned back to the matrimonial home along with her husband and son as per request of the accused persons. However, ultimately the accused persons along with the husband of the complainant drove her out from the said matrimonial house by way of snatching the minor boy from the complainant. It is alleged that the accused persons at that time also retained gold ornaments and other articles of the complainant. Since then the complainant started living in her fathers house. Thereafter the husband of the complainant committed suicide. On 11.7.2007 the complainant went to her matrimonial house to take back her son but the accused persons did not allow the boy to meet his mother and confined him in a room. Subsequently, at the instigation of the accused persons, the complainant was arrested by the police in a case under Section 306 of the Indian Penal Code alleging that she abetted the commission of suicide by her husband. Ultimately, the complainant was released on bail and on 29.7.2007 when the complainant went to the matrimonial house for taking back her son, at that time the accused persons did not handover the said boy to his mother and confined him in a room. Finding no other alternative, the complainant filed the petition of complaint against the accused persons, who are the petitioners of this revisional application and the learned Magistrate was pleased to issue summons under Section 344 of the Indian Penal Code against them. Finding no other alternative, the complainant filed the petition of complaint against the accused persons, who are the petitioners of this revisional application and the learned Magistrate was pleased to issue summons under Section 344 of the Indian Penal Code against them. (3.) On the basis of the said summons, the petitioners surrendered before the Court below and were released on bail. During the pendency of the said case, the petitioner No. 1, who is the grandmother of the boy and the opposite party No. 2 being the mother of the said boy filed petitions praying for custody of the said boy. However, the learned Magistrate by his order dated 16.8.2007 handed over the custody of the said boy in favour of the petitioner No. 1, the grandmother. Before passing such order the learned Magistrate made enquiry from the said alleged victim boy and being satisfied that he was not illegally confined by the present petitioners/accused persons, the custody of the boy was given in favour of the petitioner No. 1. (4.) According to the petitioners in view of the statements, so made by the victim boy, no question can arise regarding the claim of the opposite party No. 2 that the boy was illegally confined by the petitioners, warranting prosecution against the present petitioners under Section 344 of the Indian Penal Code. The petitioners by filing the present revisional application have prayed for quashing of the said criminal proceeding, as continuation of the said proceeding will be an abuse of the process of the Court. (5.) So far as CRR No. 3926 of 2007 is concerned, it appears that the same was filed by the petitioner being the mother of the victim boy. In the said application the order of the learned Magistrate dated 16/8/2007 was challenged. It is the case of the petitioner that the learned Magistrate was not at all justified in handing over the custody of the boy in favour of the grandmother thereby denying the claim of the natural guardian mother viz. the present petitioner. According to the petitioner, said order of the learned Magistrate is bad in the eye of law and should be set aside immediately. (6.) It appears that both the revisional applications were filed in connection with the custody of the child in question. the present petitioner. According to the petitioner, said order of the learned Magistrate is bad in the eye of law and should be set aside immediately. (6.) It appears that both the revisional applications were filed in connection with the custody of the child in question. So far as the claim of the mother is concerned, it appears that the said criminal case was instituted on the basis that the child was illegally detained by the accused persons being the grandmother and uncle of the said child. However, it appears from the order dated 16.8.2007 that before the learned Magistrate said boy clearly stated that he was not confined illegally by his grandmother and the uncle, as alleged by his mother. On the contrary, the boy expressed his desire in no uncertain terms to the effect that he wanted to stay with his grandmother and uncle. Under such circumstances, there cannot be any question of illegal detention by the accused persons. In view of such statement of the boy before the learned Magistrate, I think that there is no substance in the allegation, as made in the said criminal case initiated by the mother of the said child. To my mind, further continuation of the said criminal proceeding will be an abuse of the process of the Court and as such, I think that the same should be quashed at once. (7.) So far as the impugned order of the learned Magistrate is concerned, the learned Advocate for the mother argued that the learned Magistrate was not at all justified in handing over custody to the grandmother of the said child by way of denying the claim of the natural guardian/mother. As such, according to the learned Advocate for the petitioner/mother, said order of the learned Magistrate is patently illegal and it should be set aside immediately. (8.) I have taken into consideration the submissions, so made by the learned Advocate for the petitioner/mother. It is the admitted position that the age of the child is in between 5 to 6 years. As such, when the child was brought before the learned Magistrate and when divergent claims were put forward by the mother and the grandmother of the said child, then it was the duty of the learned Magistrate to consider the welfare of the child in deciding as to in whose custody the child should be given. As such, when the child was brought before the learned Magistrate and when divergent claims were put forward by the mother and the grandmother of the said child, then it was the duty of the learned Magistrate to consider the welfare of the child in deciding as to in whose custody the child should be given. This order of the learned Magistrate for giving custody of the child in favour of the grandmother is nothing but an interim measure so long the matter is settled in a competent Court of civil jurisdiction. It is always open for the mother, who is aggrieved by the impugned order, to approach the competent Civil Court under The Guardian and Wards Act to declare her to be the guardian of the said child and for giving custody of the child in her favour. So long that is not done, as a Criminal Court, the learned Magistrate is supposed to look into the welfare of the child as it stands now, Since it appeared to the learned Magistrate, as per the statement of the child in question, made in open Court, that the welfare of the said child will be protected if the interim custody of the said child is handed over to the grandmother and not to the mother. I find no illegality in the said order of the learned Magistrate and in my considered opinion, there is no reason for this Court to interfere with the said order of the learned Magistrate, particularly in view of the statement, as made by the boy before the learned Magistrate. (9.) Learned Advocate for the petitioner/mother submitted that an arrangement may be made to allow her to meet her child periodically. However, at the same time, Mr. Bagchi, learned Advocate for the petitioner submitted that the child is not at all willing even to talk with him, being the Advocate of the petitioner/mother. If such being the position, then if an arrangement for periodical meeting in between the mother and the child is granted by this Court, then I think that will create more complications and it may affect the mind of the child also. It is not open lor the Criminal Court to impose anything on a child against his will and as such, I am unable to accept this prayer, as made by the learned Advocate for the petitioner/mother. It is not open lor the Criminal Court to impose anything on a child against his will and as such, I am unable to accept this prayer, as made by the learned Advocate for the petitioner/mother. The mother is at liberty to approach the competent civil Court for that purpose. (10) Therefore, from my above discussion, I am of opinion that the criminal case, as pending in the Court below, should be quashed immediately and the impugned order dated 16.8.2007, as passed by the learned Magistrate should be confirmed. (11.) In the result, both the revisional applications are disposed of on contest but without cost. The proceeding being C.R. Case No. 518 of 2007, as pending in the Court of the learned Judicial Magistrate, 2nd Court, Serampore, Hooghly, is quashed. Accused persons are discharged. However, the order dated 16.8.2007, as passed in the said proceeding by the learned Magistrate, is confirmed. (12.) Send a copy of this judgment to the Court below at once for information and necessary action.