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CRR/1468/2019 on 5 August, 2019

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05.08.2019
(51)

(ap)
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

wrongly confined.

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

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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,

Murshidabad.

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.

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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

stayed permanently.

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

date.

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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

August, 2019.

Urgent photostat certified copy of this order, if applied for,

be supplied to the parties as early as possible.

(Rajasekhar Mantha, J.)

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