IMPORTANT POINT
When dispute is between close relations it would be proper for Magistrate to hear both sides before forming an opinion as to whether confinement amounts to illegal confinement or not.

JUDGMENT

Sashikanta Mishra, J.—The petitioner is the wife of opposite party no.3. The opposite party no.2 is the child, who, it is claimed, was taken away forcibly by her father-opposite party no.3 from the custody of the petitioner when she was 2 and ½ years old. The other opposite parties are family members of opposite party no.3. The petitioner filed an application under Section 97 of Cr.P.C. before the Sub- Divisional Magistrate, Jajpur vide Criminal Misc. Case No. 1305 of 2021 for issuance of search warrant. By order dated 30.09.2021, learned S.D.M. issued a search warrant directing the IIC of Jenapur Police Station to search the house of the opposite parties and to produce the child before the Court. Subsequently, by order dated 26.10.2021, learned S.D.M., held that the child is in the custody of its father with the intervention of IIC of Ponda Police Station, Goa and therefore, the question of illegal confinement does not arise as he is the natural father and legal guardian. Again, the petitioner filed an application being Criminal Misc. Case No. 725 of 2022. By order dated 12.04.2022, the learned S.D.M., Jajpur rejected the application by holding that the self same dispute had already been decided in the earlier case and therefore, the proceeding initiated is res judicata. The above orders are impugned in the present revision.

2. Mr. A.N. Pattanayak, learned counsel appearing for the petitioner submits that there is no concept of res judicata in criminal jurisprudence. Secondly, the subsequent application was filed as it was for a different cause of action viz., danger to the life of the child. He further relies upon a judgment passed by this Court in the case of Keshaba Chandra Sahoo vs. State of Odisha and others reported in 2023(I) OLR 288 and the decision of the Bombay High Court in the case of Purushottam Wamanrao Thakur v. Warsha, reported in 1992 CriLJ 1688 in support of his contention. On such basis Mr. Pattanayak submits that learned Magistrate should have issued notice to the opposite parties in order to be satisfied whether keeping of the child by the father amounts to illegal confinement or not.

3. Per contra Mr. S.K. Mishra, learned Addl. Standing Counsel for the State has contended that the second application filed by the petitioner-wife is barred under Section 362 of Cr.P.C.. He further submits that it is open to the petitioner to approach the competent court seeking custody of the child if she so desires, but such order cannot be passed in an application under Section 97 of Cr.P.C..

4. Undoubtedly, Section 362 of Cr.P.C. places a bar on a criminal court to review or alter its judgment/order after the same has been passed but then, it must also be kept in mind that the first application was filed in the year 2021 which was disposed of on 26.10.2021. The subsequent application was filed in the year 2022. If the averments of the subsequent application are read objectively, it would reveal a definite and specific cause of action crystallized under paragraphs- 5 and 6 thereof, which are extracted below:—

“(5) That the petitioner came to know from a reliable source, that her minor daughter Ahana Ray O.P. No.4 has been wrongfully confined by the O.P. No.1 in the house of O.P. No. 2 & 3 at Vill-Ghanapur (Dochhaki) under Paradeep Lock Police Station which amounts to an offence.

(6) That the petitioner has reason to believe that the life of her minor daughter (O.P. No.4) is not safe in the hands of the O.P. No. 1, 2 and 3, and they may eliminate her at any time.”

Thus, the alleged confinement of the child as per the first application cannot be treated as a one-off incident so that the order passed by learned SDM on 26.10.2021 would be treated as a bar for invoking the provision under Section 97 of Cr.P.C. for all times to come. Such an interpretation would militate against the very legislative intent behind enacting the relevant provision.

5. If the Court ultimately holds that keeping of the child in th