KALIDAS MUKHERJEE, J. - (1.) THIS is an application under Section 482 of the Code of Criminal Procedure assailing the Order dated 04.01.2011 passed in criminal Revision No. 151 of 2010 by the Learned Additional Sessions Judge, 4th Fast Track Court, Bichar Bhawan, Calcutta affirming the order dated 19.03.2010 passed by the Learned Additional Chief Metropolitan Magistrate, Calcutta in Shyampukur PS Case No. 79 dated 20.03.2011 under Sections 498A/ 406/ 120B IPC and allowing the prayer of the de facto complainant under Section 97 of the Code of Criminal Procedure for the recovery of the child from the custody of the petitioner / father.
(2.) SMT. Anamika Mukherjee filed a petition of complaint before the learned Additional Chief Metropolitan Magistrate, Calcutta under Sections 498A/ 406/ 120B and Section 4 of the Dowry Prohibition Act which was sent to the Shyampukur P.S. under Section 156(3) Code of Criminal Procedure. Another application was filed by the complainant under Section 97 of the Code of Criminal Procedure wherein it has been alleged that the accused Nos. 1 to 3 conjointly entered into conspiracy and kept the sucking baby away from the petitioner and thus wrongfully confined the baby. It has been alleged that the baby was thus deprived of proper nourishment, care and affection. It has been stated in the petition under Section 97 Cr. P.C. that the baby is aged about 2 years 5 months. The learned Magistrate vide order dated 19.03.2010 was pleased to issue search warrant observing that such a baby was inseparable from his mother"s lap. The finding of the learned Magistrate was affirmed by the Learned Additional Sessions Judge, Fast Track 4th Court, Bichar Bhawan, Calcutta.
(3.) THE learned counsel appearing for the petitioner submits that the marriage took place on 16.01.2005 and the baby was born on 07.10.2007. It is submitted by the learned counsel that on 28.04.2008 the wife left the matrimonial home leaving the 6 months old baby with the husband, and on 19.03.2010 the petition of complaint was filed under Section 156(3) Cr. P.C. within an application under section 97 Cr. P.C.. It is contended that under Section 97 Cr.P.C. no search warrant can be issued for the recovery of the child from the custody of the father, in as much as, the father is a natural guardian under the law and custody of the child with the father cannot be said to be a wrongful confinement. It is contended that the learned Magistrate was not justified in issuing search warrant on the prayer of the mother for the recovery of the child from the custody of the father.;