C.R.R. No. 1468 of 2019
In re : Sipra Pramanik. ..Petitioner.
Re: Application under Sections 401 and Section482 of the
Code of Criminal Procedure filed on 21.06.2019
Md. Ashraf Ali,
Ms. Sabnam Laskar.
…for the petitioner.
The child of the parties is nine years old. She was in the
custody of the father and was being taken care of, during the
office hours of the father, by the paternal grandmother.
The petitioner-mother of the child made an application
under Section 97 of the Code of Criminal Procedure and on the
very first day on 29th June, 2018, the Sub-Divisional Magistrate,
Sadar, Berhampore, Murshidabad directed that the child be
recovered from the custody of the father and be given to the
mother and the same was done.
It is pertinent to note that Section 97 of the Code of
Criminal Procedure deals with search for persons, who are
By no stretch of imagination, it can be said that a girl
living with the father and being in his lawful custody is in
wrongful confinement, in view of the provisions of Section 6 of
the Hindu Minority and SectionGuardianship Act, 1956 which
mandates that the father is a natural guardian of the child. The
child has been lying in the custody of the petitioner mother,
since June 2018, after the rash and inappropriate order passed
by the learned Sub-Divisional Magistrate, Sadar, Berhampore,
The opposite party-husband preferred an appeal to the
Court of Sessions in revisional jurisdiction in Criminal Revision
No. 113 of 2018. By a judgment and order dated 1st April, 2019,
the learned Court of Sessions has set aside the order of the
Sub-Divisional Magistrate, Sadar, Berhampore, Murshidabad by
a detailed order.
This Court is in full agreement with the judgment
impugned since the Sub-Divisional Magistrate has exercised the
jurisdiction wrongfully under Section 97 of the Code of Criminal
Procedure and has also thrown the procedure to the wind.
The order of recovery of child has been passed, that too
under Section 97 of the Code of Criminal Procedure, on the very
first day that it was moved before him.
This Court strongly deprecates such practice and directs
the learned District Judge, Murshidabad to appropriately
admonish from the Sub-Divisional Magistrate, Sadar,
Berhampore at Murshidabad.
It further transpired that an application under the
Guardians and SectionWards Act is pending being Guardianship Case
No. 53 of 2017, which is yet to be decided. The said proceeding
has been suppressed by the petitioner-mother before this Court.
It has appears to this Court in no uncertain terms that
the welfare of the child was not in the mind of the petitioner
when the application under Section 97 of the Code of Criminal
Procedure was filed. It was more of an ego issue for the
petitioner mother than the welfare of the child to snatch away
the child from the lawful custody of the father.
In those circumstances, the child shall be forthwith
handed over to the opposite party-father, failing which the
proceeding under the Guardians and SectionWards Act shall remain
In the event, the child is handed over to the opposite
party-father within a period of 48 hours from date, the
proceeding under the Guardians and SectionWards Act being
Guardianship Case No. 53 of 2017 pending before the Court of
the learned 3rd Additional District Judge at Berhampore,
Murshidabad shall be taken up, heard and disposed of in
accordance law, preferably within a period of three months from
This Court expresses deep anguish at the conduct of the
Sub-Divisional Magistrate, Sadar, Berhampore, Murshidabad.
The petitioner shall serve notice of a copy of this
application and this order upon the opposite party and to file
affidavit-of-service on the next date of hearing.
This matter shall be listed day after tomorrow i.e. on 7th
Urgent photostat certified copy of this order, if applied for,
be supplied to the parties as early as possible.
(Rajasekhar Mantha, J.)