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HIGH COURT OF CALCUTTA
D. P. Sengupta, J.
Bidyut Biswas
vs.
Kuheli Biswas & State
C.R.R. No. 1506 of 2001
Decided On: September 11, 2001
CRIMINAL PROCEDURE CODE - SECTION 97 - WRONGFUL CONFINEMENT - JURISDICTION OF MAGISTRATE - FATHER TAKING AWAY HIS OWN CHILD - NOT WRONGFUL CONFINEMENT - MAGISTRATE CANNOT EXERCISE JURISDICTION UNDER SECTION 97.
Fact of the Case:
The petitioner's son was taken away from his custody by the police on the basis of a complaint filed by the opposite party under section 342 of the Indian Penal Code read with section 97 of the Code of Criminal Procedure, alleging wrongful confinement. The Magistrate directed the police to enquire into the matter and submit a report, and also directed the petitioner to appear in court on a later date.
Finding of the Court:
The court held that the Magistrate's order was illegal as there was no wrongful confinement of the child by the petitioner, who was the natural guardian of the child. The court further held that the Magistrate could not exercise jurisdiction under section 97 of the Code of Criminal Procedure as the confinement did not amount to an offence.
Issues: 1. Whether the Magistrate had jurisdiction to pass the order directing the police to enquire into the matter and submit a report, and directing the petitioner to appear in court? 2. Whether the petitioner had wrongfully confined his own son?
Ratio Decidendi: 1. The Magistrate's jurisdiction under section 97 of the Code of Criminal Procedure can only be exercised in cases of illegal confinement which amounts to an offence. 2. A father taking away his own child from the custody of its mother does not amount to wrongful confinement.
Final Decision: The court allowed the revisional application and set aside the impugned order of the Magistrate. The court also directed the Magistrate to take immediate steps to hand over the child to the custody of the petitioner.
Certainly. Based on the provided legal document, here are the key points:
The court clarified that a Magistrate cannot exercise jurisdiction under section 97 of the Criminal Procedure Code when a father takes his own child from the custody of the mother, as such action does not constitute an offence or wrongful confinement (!) (!) .
The case involved a complaint filed by the opposite party under section 342 of the Indian Penal Code read with section 97 of the Criminal Procedure Code, leading to an order for police enquiry, which was later challenged (!) (!) .
The court found that there was no wrongful confinement of the child by the petitioner, who is the natural guardian, and that the Magistrate's order directing enquiry was illegal because the confinement did not amount to an offence (!) (!) .
The court emphasized that jurisdiction under section 97 applies only in cases of illegal confinement that amount to an offence. Since the father was in lawful custody of his own child, his actions could not be deemed wrongful confinement (!) .
The impugned order passed by the Magistrate was set aside, and directions were given for the immediate handover of the child to the custody of the petitioner/father (!) (!) .
The court also directed the Magistrate to take immediate steps to produce the child before him and to hand over custody to the father, effectively restoring the status quo ante (!) (!) .
The court relied on principles that orders obtained improperly or through suppression of facts should be corrected, and that the courts have a duty to restore parties to their original position if an order was made in error (!) (!) (!) (!) (!) (!) .
The overall decision underscores that actions by a parent in exercising lawful custody are not wrongful confinement and that jurisdictional limits of the Magistrate under section 97 are strictly confined to illegal confinement amounting to an offence (!) (!) .
These points collectively highlight the legal reasoning that a father’s act of taking his own child from the mother’s custody does not constitute wrongful confinement and that orders in such cases must be carefully scrutinized for legality.
D. P. Sengupta, J.: This revisional application is directed against an order dated 8.6.2001 passed by the learned Sub-Divisional Magistrate, Barrackpore in Misc. Case No. 12/Ex./Barrackpore of 2001.
The present opposite party No.1 filed an application in terms of section 342 of the Indian Penal Code read with section 97 of the Code of Criminal Procedure in the court of the learned Sub-Divisional Magistrate, Barrackpore, which was numbered as Misc. Case No. 12/Ex./BKP/08-06-2001. On such application, the learned Sub-Divisional Magistrate passed an order directing the O.C., Titagarh Police Station to enquire into the matter immediately and to submit a report whether there is any wrongful confinement or not. It was further directed that the petitioner would come up for hearing on 18.6.2001 when the O.C. will submit a report and will also make necessary arrangement for production of the child in court.
2. Mr. Sekhar Basu, the learned Advocate, appearing for the petitioner submits that there was no wrongful confinement of the son of the present petitioner and there was no possibility of committing of an offence of wrongful confinement by the petitioner. But the present opposite party No.1 filed a frivolous and vexatious complaint with false allegations by suppressing the material facts. The O.C. of the said Police Station did not submit any report as it was directed by the learned Magistrate but the said police officer illegally handed over the son of the present petitioner to the opposite party No. 1. It is really surprising that although there was no direction by the learned Magistrate to hand-over the child to the custody of the present opposite party No.1 after recovery, the O.C. of the said Police Station handed over the child to the custody of the opposite party No.1 illegally.
It is submitted by the learned Advocate appearing for the petitioner that section 97 of the Code of Criminal Procedure applies only when the Magistrate has reason to believe that any person is confined in such circumstances that the confinement amounts to an offence. Issuance of search warrant cannot be contemplated in a case where the confinement does not amount to an offence. When a father takes away his own son aged about 6 years from the keeping of its own mother, the Magistrate can not exercise jurisdiction under section 97 of the Code of Criminal Procedure, because the father is the natural guardian and therefore can not be said to have committed any offence in taking away of his own son.
3. Mr. Jayanta Dutta, the learned Advocate appearing for the opposite party No.1 submits that since the child has already been handed over to the custody of the mother, i.e. the present opposite party No.1, such custody should not be disturbed in any way by this court and the child may be allowed to remain in the custody of the mother.
4. I have heard the learned Advocate appearing for the petitioner as also the learned Advocate appearing for the opposite party No.1 and the learned Advocate of the State. In my considered view, the impugned order passed by the learned Magistrate suffers from serious illegality. Since the child was in the custody of his father, i.e. the present petitioner, it cannot be said that there was any wrongful confinement. The learned Magistrate can exercise his jurisdiction under section 97 of the Code of Criminal Procedure only in case of any illegal confinement when such confinement amounts to an offence. When a father is in the custody of his own son, he cannot be said to have illegally confined the child. In my considered view, the impugned order passed by the learned Magistrate should not be allowed to stand.
Accordingly, I allow the present revisional application and set aside the impugned order passed by the learned Sub-Divisional Magistrate, Barrackpore.
5. Mr. Basu, the learned Advocate appearing for the petitioner submits that since the impugned order is set aside by this Court, this Court should restore status quo ante to the
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