The main legal point established in the judgment is that even a guardian can be held responsible for wrongful confinement if the child is taken away from the custody of the other parent against their will, emphasizing the paramount consideration of the welfare of the minor in custody matters.

Iqbal Ahmed Ansari, J.

1. The moot question, raised in this Criminal Petition, is this – Whether it is permissible, under the law, for a Magistrate, specified in Section 97 of the Code of Criminal Procedure (in short, the Code), to direct production before him of a male muslim child, aged about two years, if such a child is as alleged by the mother of the child to have been forcibly removed from her custody by her husband and kept confined against her will? Yet another important question, which this Criminal Petition raises, is this is forcible removal of a male muslim child, aged about two years, by his father from the custody of his mother amounts to an offence of wrongful confinement within the meaning of Section 340 IPC?

2. Before I enter into the merit of the present petition, the material facts, leading to this petition, may be noted as follows:

(i) A complaint was made to the Chief Judicial Magistrate, Kokrajhar, by the opposite party herein, her grievances being, in brief, thus: The accused No. 1 (i.e., the petitioner No. 1 herein) is her husband, their marriage having been solemnized about 11 years ago and after their marriage, they lived together as husband and wife till the last part of the month of April, 2005, at the residence of the accused at village Kaithpara Part-II under Abhayapuri Police Station, in the district of Bongaigaon. The male child, born in their wedlock, is presently aged about two years seven months. In the last part of April, 2007, the accused-petitioner No. 1 quarreled with the complainant and drove her out of her matrimonial house with her said minor child and dropped them at the residence of the complainant's elder brother, at Boro Bhadeyaguri, under Kokrajhar Police Station and since then, the complainant has been residing with her said minor child at her said elder brother's residence and it is her elder brother, who has been supporting and maintaining her and her child. On 31.05.2007, accused No. 1, accompanied by the accused No. 2 (who is cousin of the accused No. 1) appeared, suddenly, at the residence of the complainant's said brother and forcibly took away the said suckling baby from the custody of the complainant. On his return home, the complainant's elder brother searched for the accused at Kokrajhar town and other places, but came to learn that the accused had left Boro Bhadeyaguri by bus and had gone to his house at Kaithpara Part-II. On 01.06.2007 and 02.06.2007, the complainant with her elder brother and others went to the house of the accused No. 1 to bring her minor child, but the two accused persons did not allow her to bring her child; rather, the two accused threatened the complainant and her companion with assault and asked them not to come, again, to the house of the accused, though the said minor child, on seeing his mother, was eager and crying to come to the lap of his mother. As the said child is a suckling baby and has been suffering from serious illness and yet he has been kept confined forcibly against the consent of his mother in whose custody the child was, the custody of the child is wrongful and the accused have thereby committed offences under Sections 365/343/506/34 IPC. The complainant accordingly prayed for taking penal action against the two accused aforementioned and also issue a search warrant in exercise of powers under Section 97 of the Code and give custody of the child to her.

(ii) Upon, however, examining the complainant under Section 200 of the Code and holding an enquiry under Section 202 thereof, the learned Additional Chief Judicial Magistrate, Kokrajhar, held that no case of commission of any offence can be said to have been made out against the two accused inasmuch as both father and mother are natural guardians of the said child and taking away of the said child by her father, who is a guardian, does not amount to an offence of wrongful confinement. On the conclusion so reached, the learned Additional Chief Judicial Magistrate passed, on