Calcutta High Court Samir Saha-vs-Kalyani Saha And Anr. on 1 December, 1992
Equivalent citations:97 CWN 760, II (1993) DMC 610
Bench: G R Bhattacharjee
Gitesh Ranjan Bhattacharjee, J.
1. This is an application under Section 482/401 of the Code of Criminal Procedure, 1973. The Petitioner Sri Samir Saha is an accused in a session case which is now pending. The First Information Report of that case was lodged under Sections 498A/306, I.P.C. It is a case of unnatural death of the wife of the petitioner. The’ petitioner’s wife died leaving behind a baby of 6 months. Soon after the death of the petitioner’s wife, Smt. Kalyani Saha the opposite party herein who is the mother-in-law of the petitioner started a criminal case under Section 342, I.P.C. (being case No. 764/1989/T.R. 1906/1989) in the Court of the Sub-Divisional Judicial Magistrate, Barrackpore by filing a petition of complaint against the petitioner and 5 others on 13th September, 1989. On that very date the opposite party complainant also filed an application under Section 97 Cr. P.C. for recovery of the said baby from the house of the petitioner and for its custody. It may be mentioned that the other accused in that case, besides the petitioner-husband were the brothers-in-law, father-in-law and mother-in-law of the deceased wife. The Magistrate concerned directed for issuing search warrant for recovery of the child with a further direction that if recovered, the child would be made over to the custody of the complainant on her executing a bond of Rs. 5000/-. Accordingly the child was recovered and given to the custody of the complainant. Subsequently on 29th September, 1989 on the prayer of the complainant the criminal case started under Section 342 I.P.C. in which the said search warrant was issued was dropped. Long thereafter on 27th July, 1992 the petitioner filed an application in the Court below praying for a direction upon the complainant to produce the child before the Court and for handing over the custody of the child to the petitioner. The said petition was however rejected by the Court below by order dated 25th August, 1992 on the ground that the said Court was not in a position to determine as to who was the legal guardian of the child at that time which has to be decided by proper forum. It was also observed inter alia by the Court below in the said order that the opposite party herein obtained the custody of the child as per order dated the 20th September, 1989 in connection with the case No. 764/1989 and the petitioner did not move against that order and as such the custody of the child at that time with the opposite party was in accordance with law and the Court below did not think it proper to disturb the position of the child’s custody. The petitioner has then moved this Court by the present revisional application for appropriate orders so that he can get the custody of the child.
2. It has been submitted by the learned Advocate for the petitioner that the entire proceeding started by the opposite party as complainant in the Court below by a petition of complaint under Section 342 I.P.C. was wholly untenable inasmuch as a reading of the petition of the complaint would show that there was no such allegation which could import the ingredients of the offence of wrongful confinment punishable under Section 342 I.P.C. It has also been submitted by him that even prima facie the petition filed by the opposite party complainant in that case for a search warrant under Section 97 Cr.P.C. did not also make out any case either under Section 342 I.P.C. or under Section 97 Cr.P.C. There is no doubt that these submissions are not without substance and even without taking assistance of the decisions referred to by the learned Advocate for the petitioner in support of his contention (such as Chaudhuri Mea v. Abdul Rahman, 24 C.W.N 104, Banarsi Lal v. Neelam, A.I R. 1969, Delhi, 304 etc.), I am convinced that the proceedings taken under Section 342 I.P.C. and under Section 97 Cr P C. were not well-founded. The substance of the allegation in the complaint filed by the opposite party herein was that the accused persons fled away just after the occurrence leaving the 6 months old suckling baby under the custody of a servant and the child was confined in the room by the said servant and the baby was not getting proper food, milk etc. and was likely to die at any moment in the absence of proper food and care. The accused persons in that case were the husband and the in-laws of the deceased wife. Even the alleged servant was not made an accused in that case. Wrongful confinement which is punishable under Section 342 I.P.C. has been defined in Section 340 I.P.C. in the following language : “whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits is said ‘wrongfully to confine that person”. Plainly, the allegation that the accused persons all fled away leaving behind the child in the house in the custody of a servant does not amount to an allegation of wrongful confinement against them. Again the search warrant under Section 97 Cr.P.C. can be issued by a competent Magistrate only if he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. As already pointed out the mere allegation that the husband and the in-laws of the deceased wife has fled away leaving behind the child in the house in the custody of a servant does not make out an offence punishable under Section 342 I.P.C. It is extremely doubtful whether the learned Magistrate was justified in issuing the search warrant under Section 97 Cr.P.C. in the said case on the basis of such allegation.
3. Be that as it may, the fact remains that the petitioner did not challenge the said order of the learned Magistrate for nearly 3 years. From the documents produced by the learned Advocate for the opposite party, it appears that on 11th June, 1992 the present petitioner filed a separate case in the court below by a petition of complaint under Section 342 I.P.C. (which is case No. C-838/92-T-161/92 of the Court of the Judicial Magistrate, 1st Court, Barrackpore) against the opposite party herein and her husband and also prayed for a search warrant for recovery of the child from the custody of the opposite party. It was however only at a subsequent stage a separate application was filed by the petitioner in the Court below for direction of production of the child and that petition was disposed of by the learned Court below by his order dated the 25th August, 1992 as stated earlier. It has been submitted by the learned Advocate for the opposite party that the said petition for custody of the child was made in the separate proceeding which was started by the petitioner under Section 342 I.P.C. against the opposite party as would be evident from the case No. appearing on the order-sheet as well as on the application made for the production of the child. On the other hand, the learned Advocate for the petitioner admitted that the said application for production of the child was made, as a matter of fact, with reference to the earlier criminal proceeding brought by the opposite party herein although the learned Magistrate dealt with the same in the subsequent proceeding brought by the petitioner. Be that as it may, the fact remains that about 3 years after the first proceeding brought, by the opposite party herein was disposed of the petitioner filed a separate case under the same Section 342 I.P.C. and also prayed for a search warrant under the same Section 97 Cr.P.C. and it was only during the pendency of this subsequent proceeding he made another application referring to the earlier proceeding for a direction for production of the child. It has been submitted by the learned Advocate for the petitioner that at any rate delay does not fetter the jurisdiction of this Court to pass such order as this Court may consider necessary to pass for securing the ends of justice. It has been further submitted on behalf of the petitioner that the petitioner being the father of the child is its natural guardian and is therefore entitled to the custody of the child, particularly when the proceeding and the order for search warrant on the basis of which the custody of the child was given to the mother-in-law of the petitioner was bad in law and when the mother-in-law of the petitioner has no right under law to the guardianship or custody of the child in preference to the petitioner who is the father of the child. It has been also submitted that since the proceeding and the search warrant on the basis of which the child was given to the custody of the opposite party are bad in law it is a natural coronary thereto that the custody of the child obtained on the basis of an illegal order for search warrant should be restored to the petitioner. It is also the submission on behalf of the petitioner that at the relevant time the petitioner and the others had to be away from the house for avoiding arrest and for making application for anticipatory bail but the child was at that time under the care and custody of the widowed sister of the father of the petitioner in the petitioner’s house and the child was taken away from her custody hale and hearty which has been mentioned in the custody paper. On the other hand, the learned Advocate for the opposite party submitted that during the last 3 years the child is under the care, custody and affection of the opposite party is now aged more than 34 years.
4. Now the question is whether this Court, in the present revisional application, should pass any order regarding the custody of the child. It needs no emphasis that in a case of this nature the Court has to be circumspect and the matter cannot be dealt with from a purely technical angle of view inasmuch as here the crux of the question concerns the custody of a child and not merely procedural technicality as to whether the search warrant was legally and validly issued. Had it been the question of custody of any chattel the matter would have been definitely easier. Also it would have been so if this matter had been agitated soon after the opposite party, got the custody of the child. But here it is the question of rather transfer of custody of a tender child of 31/2 years who has been living with maternal grandmother for the last 3 years. Rightly or wrongly the maternal grandmother has obtained the custody of the child more than 3 years back and has been rearing it up. The question that will now have to be dealt with is whether the child should be transferred back to the dejure guardian from the custody of the de facto guardian of the person of the child. This is a question which should be decided on consideration of a number of factors which it is not advisable to deal with in the present matter on an application of criminal revision. The welfare of the child being of paramount consideration the matter should rather be dealt with in a more plenary way by a Court of competent jurisdiction in a guardianship and/or custody proceeding. In that view of the matter this Court considers it unwise to deal, in exercise of its criminal revisional jurisdiction, with the question of custody of the child and rather leaves it to be decided by a Court of competent jurisdiction in a properly constituted guardianship and/ or custody proceeding.
5. This criminal revisional application is accordingly disposed of without passing any effective order but granting leave to the petitioner to agitate the matter of custody of the child in a properly constituted guardianship and/or custody proceeding before a competent forum in accordance with law, if so advised. It is however made clear that the fact that the opposite party obtained the custody of the child under the order of a Judicial Magistrate issuing search warrant under Section 97 Cr.P.C. in respect of the child will not itself be a relevant consideration in deciding the question as to who should be awarded the custody of the child in a properly constituted guardianship and/or custody proceeding. It is also made clear that nothing in this order will be construed as an opinion of this Court on the merit of the question as to who should be awarded the custody of the child.