The welfare of the child is the paramount consideration in custody disputes, favoring biological parents despite ongoing criminal allegations.

CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 16.01.2025 : Date of Judgment: 29.01.2025 S.S. Mishra, J. Heard Mr. Prasanna Kumar Parhi, learned counsel for the petitioners and Ms. Sarita Maharana, learned Additional Standing Counsel for the State.

2. In this petition, the petitioners are seeking quashing of the order dated 01.08.2024 passed by the learned J.M.F.C., Balasore in connection with Balasore Town P.S. Case No.125 of 2024 corresponding to C.T. Case No.318 of 2024, whereby the application moved by the petitioners for delivery of the custody of their daughter to them has been turned down.

3. The petitioners are accused in connection with Balasore Town P.S. Case No.125 of 2024 corresponding to C.T. Case No.318 of 2024 registered for the alleged commission of the offences punishable under Sections 451/363 of the IPC pending in the Court of the learned J.M.F.C., Balasore.

4. The allegation against the petitioners is that, the complainant reported at the local P.S. inter alia, alleging that on 02.04.2024, he had admitted his new born baby at the Special Care Unit, Balasore Headquarter Hospital and during the treatment on 04.04.2024 in the afternoon, someone had taken his son from the hospital bed. Hence, the F.I.R.

5. The investigation of the case revealed that, the petitioners have kidnapped the baby boy from the hospital by abandoning their own daughter. The abandoned biological daughter of the petitioners has been given to the custody of the respondent agency. The petitioners are being prosecuted for the offence as alleged in the F.I.R. mentioned above.

6. Both the petitioners have been admitted to bail and they are facing the trial for the offences they are charge- sheeted for. At this stage, they moved an application before the Court below seeking delivery of the custody of their daughter to them, which has been turned down by the learned trial Court by the impugned order, inter alia, observing as under:

“I have perused the case record along with other connected relevant documents viz. The FIR, The Charge-sheet, 161 Statement of the witnesses, the case diary, seizure list, order of the S.D.J.M., Balasore on dtd. 15.04.2024 and other documents related to this case. On perusal it is found that this case was instituted on the basis of written report given by one Susanta Barik. As per his information on dtd. 02.04.2024 when he had admitted his infant child (of age 8 days) in the New Born Special Care Unit, O&G Department at DHH, Balasore, on dtd. 04.04.2024 at about 12:00 noon, his child was stolen from that Unit. Also as per the allegation of the prosecution, the accused namely, Sumatimani Sau with an urge to have a male child, left her new born baby daughter on the bed of the informant and kidnapped the male child of the informant. The accused kept the male child of the informant with her till 05.04.2024, after which the male child was recovered from the possession of the accused from her house.

After receiving the information the IO in this case started investigation and during his investigation he found that the present accused petitioners were actively involved in this case. After completion of his investigation he submitted charge sheet to the Court, in which the names of the present accused petitioners are mentioned as the prime accused persons. Upon further perusal it is known that on dtd. 12.04.2024 one of the accused namely, Sumatimani Sahu, who is the biological mother of the female girl child presented a prisoner’s petition before the S.D.J.M., Balasore to hand over the female girl child to her but the same was rejected by that Court in a well reasoned order and the custody of the said female