IMPORTANT POINT
The court established that interim custody can be granted in criminal proceedings based on DNA evidence, but such evidence alone does not determine parenthood, and the welfare of the child must be the primary consideration.

JUDGMENT :

(Susmita Phukan Khaund, J.) :

Heard Mr M Dutta, learned counsel for the petitioner and Ms S H Bora, learned Additional Public Prosecutor for the State of Assam. Also heard Mr P Kataki, learned counsel for the respondent Nos. 2 and 3.

2. The petitioner, Sohidul Ali @ Sohidul Islam has filed this application under Section 482 of the Code of Criminal Procedure, 1973 (CrPC for short), read with Sections 397 and 401 CrPC seeking quashing of the order dated 09.06.2022, passed by the learned Chief Judicial Magistrate, Barpeta, in connection with Barpeta PS Case No. 1799 of 2019, granting interim custody of the petitioner's son to respondent No. 3.

3. The FIR unfolds exchange of a baby. The informant Abdul Mutalib Hussain’s wife is Najma Khanam-Respondent No. 3 herein. On 05.05.2019, as the informant’s (Respondent No. 2 for short) child was suffering from breathing problem, the child was admitted at NSCU in the evening and Form IR N 310 inborn was registered against the admission of the child. When the informant wanted to see his child again, he was not allowed to see his child and on the next date, i.e., on 06.05.2019 at about 11:00 a.m., the NSCU authority called him and handed over the dead body of a newborn baby. The informant, however noticed that the dead body was not of his child as his child weighed only 2 kgs at the time of his birth, whereas the dead body which was handed over to him was more than 2 kgs. Under queer circumstances, another woman named Najma Khatun, wife of Sohidul Islam of Gossaigaon was admitted and she too gave birth to a child. The informant's wife also took ill and she was admitted in the ICU and he was busy attending to his wife and this resulted in a delay in collecting the documents of his child.

4. It is averred by the informant that the cause of death certificate given to the informant by the NSC authority was misfiled due to the treatment of his wife and the informant applied for duplicate cause of death certificate. At that time, the informant noticed that the file number was IRN 413 and he immediately informed the person who issued the certificates that his child's file number was IRN 310 and inborn was written over it. He also informed the person concerned that this certificate was given to Najma Khatun, wife of Sohidul Islam (petitioner) of Guabari and that his child is still alive. The informant strongly suspected that on 06.05.2019 at about 11:00 am, the on duty employee, in exchange of gratification exchanged his child with the child of another woman named Najma Khatun, who is the wife of Sohidul Islam (petitioner), and his living son was handed over to the family of Najma Khatun and Sohidul Islam, while the dead body of their child was handed over to him. An FIR was lodged by the informant – Respondent No. 2 herein, which was registered as Barpeta PS Case No. 1799/19 under Section 120 B/ 363 of the Indian Penal Code (IPC for short). The present petitioner is aggrieved by the order dated 09.06.2022, passed in connection with Barpeta PS Case No. 1799/2019 by the learned CJM. The order is reproduced herein below verbatim:-

“09.06.2022

CR put up.

Seen the prayer of the I.O., praying for handing over the victim child Nur Ali showing that said Nur Ali was recovered on 09.06.2022 and requested to hand over to legal guardian.

Also, seen the Petition No. 4580/2022 filed by Nazma Khanam praying for custody of the child Nur Ali showing that she is the mother of the child and also wife of the complainant namely Abdul Motalib Hussain. The petitioner further submitted that the said recovered child is her son which requires to be given under her custody.

Heard both sides.

Seen the child Nur Ali which recovered by the I.O. on the strength of the order passed by this Court upon the prayer made by the I.O.

After perusing the C.R., it appears that the complainant Abdul Motalib Hussain filed the FIR alleging that his new born baby has been kidnapped from the FAAMCH, Barpeta and the petitioner is the w