calcutta high court on search warrant for recovery of child

7/30/2019 Calcutta High Court on Search Warrant for recovery of child

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Kolkata High Court (Appellete Side)

Kolkata High Court (Appellete Side)

Shri Atanu Chakraborty vs The State Of West Bengal & Anr on 27 January, 2010

Author: Ashim Kumar Roy

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Form No. J (1)

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

Appellate Side

Present:

The Hon'ble Justice Ashim Kumar Roy

C.R.R. No. 3870 of 2009

With

CRAN No. 3219 of 2009

With

CRAN No. 3116 of 2009

Shri Atanu Chakraborty

versus

The State of West Bengal & Anr.

For Petitioner : Mr. Bikash Ranjan Bhattacharjee Mr. Joymalya Bagchi

Mr. Ajoy Sankar Sanyal

Mr. Sourav Bhagat

For O.P. No. 2 : Mr. Debasish Roy

Mr. A. Mondal

Mr. Rajdeep Majumdar

Mr. Sanjoy Banerjee

Mr. Kushal Kumar Mukherjee

Heard On : December 11th, 2009.


Indian Kanoon - http://indiankanoon.org/doc/789664/ 1


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Judgment On : 27-01-2010.

At the instance of the opposite party/mother an application under Section 97 of the Code of Criminal

Procedure was moved before the Court of Learned 2

Executive Magistrate, Bidhannagar with a prayer for issuance of search warrant for recovery of her minor son

aged about 4 years allegedly wrongfully confined by the present petitioner.

2. The Learned Magistrate allowed such prayer and made the following order;

"Upon perusal of the petitioner, here the submissions of the learned advocate of the petitioner, considering the

age of the minor child it is hereby ordered that,

(i) Search warrant be issued under Section 97 Cr.P.C. directing the I/C, Lake Town P.S. to recover the minor

child and produce before this Court on 26th October, 2009 positively.

(ii) I/C, Lake Town P. S. is also directed to inform the O.P. to be present before this Court on the date fixed

along with the child. (iii) The petitioner is also directed to be present on the same day positively."

3. Aggrieved by the order of issuance of search warrant under Section 97 of the Code, the petitioner who

happened to be the own father of the child moved the instant criminal revision.

4. Heard Mr. Bikash Ranjan Bhattacharjee, the Learned Senior Advocate appeared with Mr. Joymalya Bagchi

on behalf of the petitioner as well as Mr. Debasish Roy, learned advocate for the opposite party no. 2.

Although notice was served upon the State, none appeared on its behalf. Perused the impugned order as well

as other materials on record. 3

It may be noted, both the parties, viz., the father and the mother of the minor child for recovery of whom the

impugned search warrant was issued were present before this Court and they were heard personally at length.

5. The impugned order has been passed by the Learned Magistrate in exercise of his power under Section 97

of the Code of Criminal Procedure. The provisions of Section 97 of the Code is quoted below; "Search for

persons wrongfully confined.

97. 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 to 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."

6. Now, from a plain reading of the aforesaid provisions it is abundantly clear to assume jurisdiction under

Section 97 of the Code and to make any order for issuance of search warrant thereunder, the Learned

Magistrate first have to record his reasons to believe from the material produced before him that the person

allegedly confined, is confined in such a circumstance that such confinement amounts to an offence.

Therefore, it is sine quo non that any order passed under Section 97 of the Code must be preceded by

recording of reason to believe and finding that the alleged confinement of any person in the particular facts

and circumstances of the case amounts to a wrongful confinement. However, from perusal of the impugned

order I find that the Learned Magistrate made the order of issuance of search warrant by merely recording of

submissions of the learned advocate of the opposite party no. 2 and on a finding that child 4




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was aged about 4 years, but without recording any finding that in the circumstances in which the child has

been living in the custody of his own father amounts to an offence. It further appears that the order impugned

was passed quite mechanically. In one hand the Learned Magistrate directed the police to recover the minor

child and to produce him before the Court, on the other hand police was directed to inform the present

petitioner to be present in Court on the date fixed along with the child. Thus, the order so passed cannot be

said to have passed in accordance with law.

7. Besides above, in the case at hand the allegation of wrongful confinement of a minor child has been madeagainst his own father. According to the provisions of Section 6 of the Hindu Minority and Guardianship Act,

1956, in a case of a boy the father, after him the mother is his natural guardian. However, the custody of a

minor who has not completed the age of 5 years shall ordinarily be with the mother. Therefore, when the

father is the natural guardian of his son, if the son is lying in the custody of his father, even when he is below

the age of 5 years, the father cannot be charged for an offence of wrongfully confining his child and such

confinement of the son by his own father in his custody never amounts to any offence, unless the same is in

violation of any order of the Court. In the case of Ramesh Vs. Lakmi Bai, reported in 1998 SCC (Cri) 999, the

Hon'ble Apex Court held Section 97 of the Code of Criminal Procedure prima facie is not attracted when the

child was living with his own father.

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Thus, in the facts and circumstances of the present case when son is living with his own father there is no

question of invoking Section 97 of the Code of Criminal Procedure and issuance of search warrant for his

recovery.

8. For the reasons stated above, the order impugned cannot be sustained and same is set aside. The instant

criminal revision is allowed. However, it will be open to the parties to move the appropriate Civil Court in

terms of the provisions of Guardian & Wards Act, 1890 for the custody of the child, if not already moved. It is

expected the Court concerned shall dispose of such application for custody with utmost expedition.

9. This Court has already found that the order of issuance of search warrant for recovery of a child from thecustody of his own father, the petitioner herein is not lawful and accordingly set aside the same, but at the

same time the Court cannot turn a deaf ear to anguish and anxiety of a mother who admittedly has no access

to her child only aged about four and half years as well as the need of the child to have the benefit of motherly

care, affection and love. It is true that the High Court while exercising its revisional jurisdiction must confined

itself to the correctness, legality and propriety of any finding, sentence or order recorded and passed and

regularity of any proceeding of any inferior Court but the scope and amplitude of its inherent jurisdiction is

much more wider and High Court can always make such orders as may be necessary for the ends of justice.

Although such jurisdiction ought to be exercised very sparingly and in rarest of rare cases, but exercise of

such jurisdiction should not be refused in appropriate cases, ex debito justitiae, to do real and substantial

justice for the administration 6

of which alone the Court exists otherwise there will be a travesty of justice. Now, the questions arises for

decision whether the mother should be deprived of the company of her minor child only aged about 4 years

till the question of custody is decided by a competent Civil Court in accordance with law? In this connection it

would be more apposite to refer to the provisions of Article 9 (1) and Article 9 (3) of the United National

Convention on the Rights of Child, 1989 to which our country is one of the signatory. The said provisions are

quoted below; "Article 9 (1). States parties shall ensure that a child shall not be separated from his or her

parents against their will, except when competent authorities subject to judicial review determine, in

accordance with applicable law and procedures, that such separation is necessary for the best interests of the

child. Such determination may be necessary in a particular case such as one involving abuse or neglect of the

child by the parents, or one where the parents are living separately and the and a decision must be made as to

the child's place of residence.




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Article 9 (3). States parties shall respect the right of the child who is separated from one or both parents to

personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's

best interests." In my considered opinion a more pragmatic and humanistic approach has to be taken and the

mother must not be declined her access to the child.

10. Accordingly, it is ordered, till the appropriate Civil Court decide the question of custody of the minor in

question, the custody of the child although shall remain with the father, but on every Friday after school hours

at 12.30 p.m. the mother, i.e., the opposite party no. 2 will pick up the child from his school, viz., Delhi PublicSchool Mega City and the child will remain and stay with the mother for the remaining part of the Friday and

whole of Saturday and Sunday. 7

Then on Monday morning the mother will drop the child at his school Delhi Public School Mega City at 9.30

a.m. and after the school hours are over, on Monday the father will pick up the child from the school and the

child shall remain with the father and stay with him for the remaining part of Monday, then on whole

Tuesday, Wednesday and Thursday and father will reach him to school on Friday. In the event Friday is a

holiday then father will drop the child at mother's residence at EE 22/12, Salt Lake City, Sector - II, Kolkata -

700 091 at 12.30 p.m. and similarly if Monday is a holiday then the mother shall drop the child at the father's

residence at 510, Dum Dum Park, Kolkata - 700 055 at 12.30 p.m. It may be noted this arrangement has been

made after hearing the parties and they agreed to the same.

I once again make it clear this mutually agreed arrangement would be subject to any order or decision passed

by a competent Civil Court. I make it clear that I have not gone into the merits of the claim and counter claim

of the parties and the order as regards to the temporary arrangement as to the custody of the child must not be

construed as an expression of opinion as regards to the same. It is for the competent Civil Court to adjudicate

the issue and pass an appropriate order considering the welfare of the child in accordance with law.

In view of disposal of the main criminal revisional application both the applications for vacating of the interim

order being CRAN No. 3116 of 2009 and the application for extension of interim order being CRAN No.

3219 of 2009 become infructuous and accordingly stands disposed of. 8

Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if

applied for, as early as possible. ( Ashim Kumar Roy, J. )



calcutta high court on search warrant for recovery of child

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