- (1.) This revisional application is directed against an order dated 8.6.2001 passed by the learned Sub-Divisional Magistrate, Barrackpore in Misc. Case No. 12/Ex. Barrackpore of 2001. The present opposite party No. 1 filed an application in terms of Section 342 of the Indian Penal Code read with Section 97 of the Code of Criminal Procedure in the Court of the learned Sub-Divisional Magistrate, Barrackpore, which was numbered as Misc. Case No. 12/Ex. BKP/08-06-2001. On such application, the teamed Sub-Divisional Magistrate passed an order directing the O.C., Titagarh Police Station to enquire into the matter immediately and to submit a report whether there is any wrongful confinement or not. It was further directed that the petitioner would come up for hearing on 18.6.2001 when the O.C. will submit a report and will also make necessary arrangement for production of the child in Court.
(2.) Mr. Sekhar Basu, the learned Advocate appearing for the petitioner submits that there was no wrongful confinement of the son of the present petitioner and there was no possibility of committing of an offence of wrongful confinement by the petitioner. But the present opposite party No. 1 filed a frivolous and vexatious complaint with false allegations by suppressing the material facts. The O.C. of the said Police Station did not submit any report as it was directed by the learned Magistrate but the said police officer illegally handed over the son of the present petitioner to the opposite party No. 1. It is really surprising that although there was no direction by the learned Magistrate to hand-over the child to the custody of the present opposite party No. 1 after recovery, the O.C. of the said Police Station handed over the child to the custody of the opposite party No. 1 illegally. It is submitted by the learned Advocate appearing for the petitioner that Section 97 of the Code of Criminal Procedure applies only when the Magistrate has reason to believe that any person is confined in such circumstances that the confinement amounts to an offence. Issuance of search warrant cannot be contemplated in a case where the confinement does not amount to an offence. When a father takes away his own son aged about 6 years from the keeping of its own mother, the Magistrate cannot exercise jurisdiction under Section 97 of the Code of Criminal Procedure, because the father is the natural guardian and therefore cannot be said to have committed any offence in taking away of his own son.
(3.) Mr. Jayanta Dutta, the learned Advocate appearing for the opposite party No. 1 submits that since the child has already been handed over the custody of the mother, i.e. the present opposite party No. 1, such custody should not be distributed in any way by this Court and the child may be allowed to remain in the custody of the mother.;