IMPORTANT POINT
Muslim can adopt a surrendered child but they have to follow stringent procedure as laid down under JJ Act and Rules made thereunder, but not at their whim.

JUDGMENT

S. Talapatra, J.—By means of this writ petition, the custody of the minor namely Sumaiya Khanam has been sought to be restored in favour of the petitioner who is the natural guardian being the minor’s father. It has been stated that the minor who is aged about 12 years has been forcibly confined and illegally detained by the Opposite Parties No.6 to 11 since the year, 2015. However, it is admitted that the Opposite Parties No.6 to 11 are the sister of the petitioner and her daughter and son in law. It has been categorically submitted that the petitioner has been denied to meet his daughter despite series of attempts made by him.

2. The petitioner had reported the matter to the concerned police station as well as to the Child Welfare Committee (CWC) but no positive action has surfaced from those authorities. In these perspective facts, the petitioner has approached this court urging for issuance of a writ of habeas corpus, directing the Opposite Parties No.1 to 5 to produce the minor in the court and restore the custody of the minor to the petitioner.

3. The petitioner had approached the Plantsite police station on 12.09.2015 for “removal of his minor daughter”. As the police did not take any action, the petitioner filed a complaint in the court of the Sub Divisional Judicial Magistrate, Rourkela being I.C.C. case No.765 of 2015.

4. Pursuant to the said complaint, the police was directed to register a specific case and to take up the investigation. Accordingly, the Plantsite police station registered a case under Section 363/34 of the IPC being Plantsite PS case No.401 of 2015 (corresponding to G.R Case No.2776 of 2015). In addition, the petitioner made a representation to the Chairperson, Child Welfare Committee, Sundargarh (Annexure-3 to the writ petition) on 25.03.2016. After the case was registered, all the Opposite Parties obtained bail. In the course of investigation, the investigating officer filed an application before the Sub Divisional Judicial Magistrate, Rourkela for issuance of search warrant under Section 94 of the Cr.P.C as the investigating officer came to know that the minor child is in the custody of the Opposite Party No.6 namely, Shahnaz Khanam. It has been also reported by the investigating officer that the Opposite Party No.6 has illegally confined the minor in Phulwari Sharif at Patna. A search warrant was issued on 22.08.2016 but when the investigating officer visited that place, he found that the door was locked.

5. The police had submitted the final report on 31.08.2016 stating that the case was registered under mistake of fact as it has been revealed from the investigation that the petitioner had given the minor child to the Opposite Parties voluntarily. The petitioner did not file any protest petition as he was not aware of filing of the said report. As consequence thereof, the Sub-Divisional Judicial Magistrate accepted the final report on 11.02.2017. The petitioner filed another complaint in the court of the Sub Divisional Judicial Magistrate, Rourkela being I.C.C Case No.120/2017. The petitioner’s wife had also approached the Patna High Court by filing a writ petition being Cr.W.J.C. Case No.1232 of 2017. But the same was withdrawn on 04.08.2017 with liberty to seek remedy which might be available to her in law.

6. It has been stated that the Opposite Parties No.6 to 11 had approached this Hon’ble Court by filing a petition being CRLMC No.549 of 2019 challenging the order of cognizance taken by the Sub Divisional Judicial Magistrate, Rourkela in ICC Case No.120 of 2017. By the order dated 25.03.2019, this court was pleased to stay the further proceeding of the said I.C.C Case No.120/2017. The Opposite Parties No.6 to 11 filed criminal cases against the petitioner and his wife in Bihar allegedly to pressurize the petitioner to forego their ancestral property at Bihar, else they will never return their child.

7. It has been asserted in Para-7 of the writ petition that the Opposite P