The court ruled that taking children without consent from their lawful guardian constitutes kidnapping under IPC, emphasizing adherence to court-established visitation rights.

JUDGMENT :

Sanjay Kumar Dwivedi, J.

Heard the learned counsel appearing for the petitioner, learned counsel appearing for the State and learned counsel appearing for the respondent No.5.

2. The prayer in the petition is made for quashing of the entire criminal proceeding including the FIR in connection with Chakardharpur P.S. Case No.126 of 2023 for the offence under Section 363 of IPC pending in the Court of learned SDJM Porahat at West Singhbhum, Chaibasa.

3. The FIR was registered alleging therein that on the basis of the Fardbeyan of informant that her husband has taken away her both daughters without the permission of the informant and further stated that the Jawed Nehal came from Kolkata to meet his daughters namely Mariyam aged about 7 years and Alisha aged about 5 years but he took away along with him without the consent/permission of her and threatened her that do whatever she can do.

4. Mr. Onkar Nath Tewary, learned counsel appearing for the petitioner submits that the petitioner is a government employee in the West Bengal Secretariat Service and being harassed and humiliated by the in-laws in the false cases. He submits that the informant is the wife of this petitioner and out of the wedlock, they are having two daughters namely Mariyam Jawed aged about 7 years and Alisha Jawed aged about 5 years. He submits that the wife is reluctant to reside along with the petitioner and in view of that the petitioner has instituted the case under the Guardianship and Ward Act before the learned Additional District and Sessions Judge, 14th Court, Alipore, South 24 Parganas, being Ref:Act VIII-21 of 2018 corresponding to CIS 1/2019. He submits that after filing of the said petition under the Guardianship and Ward Act, the visiting right was provided to the petitioner and he was allowed to visit for a period of three hours once in a week on Sunday and to remain with the children in the premises of the wife and with consent of the wife. He submits that subsequently, the petitioner has gone to meet the children on 19.08.2023 and thereafter willingly the children have gone along with the petitioner as such no case under Section 363 of the IPC is made out. He submits that the petitioner is still ready to make an amicable settlement. He relied in the case of Chandrakala Menon (Mrs.) And Another versus Vipin Menon (Capt.) and Another reported in 1993 2 SCC 6. By way of relying on the said judgment, he submits that petitioner being the natural father and Section 363 is not attracted, on this ground, he submits that the entire criminal proceeding may kindly be quashed.

5. Learned counsel appearing for the State submits that during the pendency of this writ petition under Section 41A Cr.P.C. notice was issued upon this petitioner and the petitioner has appeared and accepted that the children are with him.

6. Learned counsel appearing for the respondent No.5 submits that the informant being the wife of the petitioner was brutally tortured and that fact has come into the final order of the learned Additional District and Sessions Judge in the said Guardianship and Ward Act, which was disposed of by the judgment dated 14.07.2023. She submits that the issue was decided against the petitioner and petition was dismissed and the custody of the children with the wife was found to be perfect by the said Court. She further submits that in view of the visiting right, the wife has allowed the petitioner to visit every week on Sunday for three hours with consent of the wife and on 19.08.2023 in absence of the wife, the petitioner has taken away both the children without her consent and after hectic efforts, she has been able to find out that the petitioner has taken away the children. She further submits that in reference to the complaint made by the wife namely Aisha Shaista, the West Bengal Commission for Protection of Child Rights forwarded to enquire into the welfare of the child and in the said report, it was reported that the children’s father was very