- (1.) The revisional application filed by the petitioners is directed against the order dated 7/12/2006 passed by the learned Judicial Magistrate, 2nd Court, Tamluk in C.R. Case No. 663 of 2005 thereby issuing search warrant against the petitioners for the recovery of the minor son of complainant. O. P. No. 2 from their custody. When the petitioners moved the revisional application in this Court on 21/12/2006 this Court directed stay of the impugned order dated 7/12/2006 passed by the learned Magistrate and being aggrieved by the said interim order the O.P. No. 2 complainant has filed an application for vacating the interim order being CRAN No. 153 of 2007. As the facts and points of law involved in the revisional application and the application being CRAN No. 153 of 2007 are identical, I intend to dispose of both the revisional application and the application for vacating the interim order by this common judgment and order.
(2.) Mr. Subir Ganguly, the learned Advocate for the petitioners submitted that in the present matter provisions of Section 97 of the Code of Criminal Procedure (in short the Code) have no manner of application. The minor son of the O.P. No. 2 is in custody of maternal grand parents, the present petitioners. Their daughter was the wife of O.P. No. 2 who expired. After death of their daughter they brought the minor son of O.P. No. 2 to their house for the welfare of the child as there was no proper person to look alter the child and to take care of the child. The child was allegedly taken away by the petitioners on 25.11.05 and upto date there was no adverse report against the petitioners to the effect that they tortured the child or did not look after the welfare of the child.
(3.) Mr. Ganguly further contended that in the application filed by O.P. No. 2 for vacating the interim order everywhere it has been stated by the complainant on the welfare of the child. It is true that welfare of the child is the paramount consideration but a Magistrate cannot decide welfare of the child. Welfare of the child is the exclusive jurisdiction of competent Civil Court of the district or the District Court. The learned Magistrate did not consider that the custody of the child with the maternal grand parents does not amount to an act constituting an offence. The learned Magistrate failed to appreciate the fact that the child is not in custody of any criminal or antisocial but, the child is in custody of grand parents who are looking after the care, protection and welfare of the child. The learned Magistrate without applying proper judicial mind issued the search warrant. The complaint was filed on 19.12.05 and on 20.12.05 search warrant was issued and the said order was challenged before this Court in CRR No, 428 of 2006. This Court directed the learned Magistrate to hear both parties in accordance with law. Challenging, the order of this Court, the O. P. No. 2 moved the Hon'ble Supreme Court in S.L.P. No. 5416/06. The Supreme Court by order dated 17.11.06 dismissed the said S.L.P. thereafter, the learned Magistrate by the impugned order dated 7.12.06 issued fresh search warrant for the recovery of the child which is illegal and the learned Magistrate did not take into consideration the observation of this Court passed in earlier CRR No. 428/06. The order of the learned Magistrate being bad in law and without jurisdiction should bo set aside.;