SURESH HAZRA Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this application under Article 226 the petitioner prays for a writ of and/or in the nature of habeas corpus commanding the respondents including the private respondent No. 6 to produce the body of the child stated to have been illegally confined by the private respondent No. 6. The petitioner claims to be the father of the girl child. The private respondent No. 6 is the maternal uncle of the said girl child. The mother of the girl child is dead and a case against the petitioner, being (Haringhata) P. S. Case No. 191/97, dated 24-11-97 under Section 498A/306, I.P.C. started on the basis of the FIR lodged by the private respondent No. 6 is now under investigation. It appears that pursuant to a search warrant issued by the Sub-Divisional Executive Magistrate, Kalyani and in execution of the same the Officer-in-charge of the Haringhata P. S. took charge of the said child and handed over the same to the private respondent No. 6 Kalachand Mondal. The learned Advocate for the petitioner refers to the decision of the Supreme Court in Gohar Begum v. Suggi, AIR 1960 SC 93 : (1960 Cri LJ 164) and submits that the High Court has jurisdiction to issue writ of habeas corpus even against a private person. It may be noted here that in the case involved in the said decision of the Supreme Court there was an application under Section 491 of the old Criminal Procedure Code and not under Article 226 of the Constitution. Be that as it may, there is no doubt that this Court has jurisdiction to issue writ of habeas corpus even against a private person in a suitable case. This jurisdiction is, however, a discretionary jurisdiction. The question is whether in a particular case the Court should exercise that power in its writ jurisdiction where there is an alternative remedy avail to the concerned party. IN the present case the child was removed from the petitioner under the order of the Sub-Divisional Executive Magistrate who issued the search warrant. This the Sub-Divisional Executive Magistrate must have done in the purported exercise of power under Section 97, Cr P.C. The question whether the Magistrate exercised the power properly, correctly and in accordance with law could be agitated by the petitioner in a revisional proceeding which he could take under the provisions of the Criminal Procedure Code. INstead of taking recourse to any such revisional proceeding the petitioner has filed the present writ application. IN our opinion, there is no good reason why the petitioner should not have pursued his alternative remedy in the matter by taking a revisional proceeding under the Criminal Procedure Code or by taking recourse to the provisions of the Guardians and Wards Act. IN view of such alternative remedies available to the petitioner we do not consider it fit and proper to exercise our writ jurisdiction in the matter. Accordingly, we dismiss the writ petition. We, however, make it perfectly clear that we have not gone into the merits of the matter which remain open to be decided by the appropriate Court in an appropriate proceeding, and we grant leave to the petitioner to approach the appropriate forum in revisional jurisdiction for relief in accordance with law, if so advised.

(2.) SUJIT BARMAN RAY, J. :- I agree. Application dismissed.