Orissa High Court
Duryodhan Mahanta vs Saraswati Mahanta on 20 August, 1991
Equivalent citations: 1992CRILJ2230, 1992(I)OLR141
Author: A. Pasayat
Bench: A. Pasayat
JUDGMENT A. Pasayat, J.
1. Propriety of order passed under Section 97 of the Criminal Procedure Code, 1973 (in short 'the Code) is the subject matter of adjudication in this revision application.
2. Opposite party filed a petition styled one under Section 97 of the Code praying learned Judicial Magistrate First Class, Jajpur Road (in short the 'JMFC') to issue a search warrant to the Officer-in-charge, Sukinda Police Station to search the house of present petitioner, release from his custody a child confined by petitioner and produce him and to give custody to the mother, the present opposite party as she is the best custodian of the child. According to present opposite party, petitioner was her husband and a son named Laxman was born on 23-12-1987; on 7-7-1990 she was driven out of the house of petitioner who had married for second time; a case for grant of maintenance was filed, as well as a complaint case under Section 494 of the Indian Penal Code, 1860 (in short the MPC); on 1-9-1990 the present petitioner forcibly took away the child to his house, and there was apprehension of danger to life of the child and the mother is the best custodian of the child. It was alleged that child was wrongfully confined and there was necessity for issue of a search warrant in terms of Section 97 of the Code. The prayer was accepted by learned JMFC, who directed the Officer-in-charge, Sukinda P.S. to recover the child and produce him before Court soon after execution of search warrant. This order was passed on 3-9-1990. The matter was directed to be placed on 4-9-1990. Since order dated 3-9-1990 was not complied, it was adjourned to 7-9-1990. Matter was again adjourned to 21-9-1990, awaiting execution of warrant. On 17-9-1990, search warrant issued was returned after execution. Petitioner entered appearance on that date. Since opposite party was not present in Court, her Advocate filed a petition to keep the child in the custody of head of the institution of Gobarghati Ashram School. The head of the said institution expressed his inability to take custody of child, on the ground that there was no scope for keeping such a small child. It is asserted by learned counsel for petitioner that in view of refusal by Ashram authority, the child was left uncared for in the Police Station and petitioner was called to look after him. On 19-9-1990 matter was taken up by learned JMFC, who passed an order delivering custody of the child to mother (opp. party), with further direction that she was to have custody tilt the child attains majority. He also further directed that after the child attains majority, he is at liberty to go to his father (petitioner). It was also directed that if father wanted in between to see the child, he was permitted to do so.
3. According to learned counsel for petitioner, exercise of jurisdiction under Section 97 of the Code was illegal and uncalled for. Learned counsel for opp. party however, submits that there is nothing illicit in the order passed by learned JMFC to warrant any interference.
4. Provisions contained in Section 97 of the Code are emergent in nature. A Magistrate is authorised to issue a search warrant if he has reason to believe or on the truth of the allegation about the wrongful confinement of a person. The Magistrate cannot issue search warrant unless confinement amounts to offence. Section 97 of the Code corresponds to Section 100 of the old Code of 1898. This section contemplates only wrongful confinement. Wrongful confinement is defined in Sections 339 and 340, IPC. Use of the expression "reason to believe" makes the legislative intent very clear that unless Magistrate has reason to believe that a person is confined in such circumstances that confinement itself amounts to an offence, issue of a search warrant under this section is without jurisdiction. Expression "reason to believe" implies belief arrived at judicially after application of judicial mind on consideration of available materials with sense of responsibility and effort of mind without ignoring as far as possible other side of controversy. When the child is in the custody of either father or mother, it becomes rather difficult to immediately come to a conclusion that confinement is illegal. Magistrate taking action has to satisfy himself that there exist materials to induce his belief that the person is confined in such circumstances as to make the confinement amount to an offence. This is the requisite pre-condition before action can be taken. The allegations need not be absolute in precision. In the absence of material which prima facie shows that confinement amounts to an offence, action under Section 97 would be improper. This Court in (1989) 2 OCR 565 ; Yudhistir Mohanand v. Dalimba Mohanand : held that when a father takes his own child from the keeping of the mother, he does not thereby commit art offence, because he is the natural guardian of the minor, and the mother cannot have a permanent right( of guardianship in preference to that of a father. A similar view was expressed by Madras High Court in 1981 Crl. L.J. (NOC) 113 : K. Sarasu v. Sengodan : to which reference was made in Yudhistir's case (supra). However, Kerala High Court held that when a Muslim father took away a child aged about 4 years from the custody of his wife by use of physical force, Magistrate had reason to belie that confinement amounted to a wrongful confinement. (See 1978 Kerala Law Times 33, corresponding to 1978 Crl. L.J., (NOC) 93 ; K. Pareekutty and Anr. v. Ayyikkal Ayissakutty and Anr. Where a mother took the custody of a child under 5 years, it was held that no offence was prima facie committed. (See Banarsi Lal v. Smt. Neelam and Ors. AIR 1959 Delhi 304 : ). When a natural father took away the child from the adoptive father; it was held that Section 100 of the old Code was inapplicable, as it was doubtful whether any offence had been committed. (See Chagan Raj v. Hera Lal Doosai: AIR 1920 Cal. 562). After the search is over and the person is found, then the concerned person is to be immediately brought to the Magistrate who has to make such order as circumstances warrant. The Magistrate before whom a person is produced by the Executing Officer, is to make such order as in the circumstances appears proper. Impugned order passed by learned JMFC, is in excess of his jurisdiction, because he did not consider the fact that the child was in custody of the father. Under Section 6 of the Hindu Minority and Guardianship Act (in short the 'Guardianship Act'), the mother is the guardian of a minor child who has not completed age of 6 years, and may have custody of minor. According to Section 6, preferential guardian is natural father, except when minor has not completed age of 5 years, in which circumstances custody shall be that of mother. The use of the word 'ordinarily' used in Section 6 reflects legislative intent to be that welfare of a child is to be kept in view and thereafter custody decided. Such question of welfare of child is to be decided by Civil Court in an appropriate proceeding as observed by Supreme Court in AIR 1987 SC 3 : Mrs. Elizabeth v. Arvand ; Paramount consideration is the welfare of the child. Therefore, learned JMFC was not justified to direct that child shall be in custody of mother, till he attains majority. Such a direction is not contemplated in terms of Section 97 of the Code.
5. Though order is not tenable in view of the fact that the child has already been handed over to the mother, opp. party herein, it would be inequitable to interfere with the order. However, it is open to petitioner to make an appropriate motion in a Court of competent jurisdiction, if so advised, to decide the question of custody of the child.
The Criminal Revision is disposed of accordingly.