Calcutta High Court (Appellete Side)
Sri Dipak Banerjee & Ors vs The State Of West Bengal & Ors on 18 June, 2014
Author: Ashim Kumar Roy
Bench: Ashim Kumar Roy
Form No.J(2)
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present: Hon'ble Justice Ashim Kumar Roy.
W.P. No. 32845 (W) of 2013
Sri Dipak Banerjee & Ors.
-vs-
The State of West Bengal & Ors.
For the petitioners : Mr. Kishore Mukherjee
Mr. Sankha Subhra Ray
For the Respondent No.6 : Mr. Saikat Chatterjee
For the State : Mr. Amit Prakash Lahiri
Mr. Mirza F.A. Begg
Heard on : 04.03.2014
Judgement on : 18.6.2014
Ashim Kumar Roy,J.: The writ petitioner No. 1 & 3
are the parents of petitioner No.2 and the father-in-law of the Respondent No.6.
It is the case of the writ petitioners that on February 14,2010 the marriage between the petitioner no.1 and the Respondent No.6 was solemnised according to the Special Marriage Act, 1954 and in their wedlock a male child was born in March 2012. Thereafter due to some discord and differences crept in between them, their relations became strained and on June, 2012 the Respondent No.6 left her matrimonial home leaving the child in the custody of writ petitioner No.2, the father of the child and his parents. Since then child was residing with the petitioner No.2 and his parents, the remaining petitioners.
In the meantime in August 2013 the petitioner No.2 and Respondent No.6 filed a MAT Suit before a competent Civil Court for dissolution of their marriage on mutual consent which is still pending. While pursuing for dissolution of marriage, on mutual consent, it was agreed between the parties that the child will remain in the care and custody of the husband i.e. the petitioner No.2 herein, however the Respondent No.6 shall have the visitation rights.
It is then contended by the learned Counsel of the writ petitioner that on September 15, 2013 at about midnight the respondent no.4 Officer-in-Charge of Belghoria Police Station, the respondent No.5 S.I. of Police attached to the same Police Station with force and being accompanied by the private respondent No.6 and few others had been to their residence and started violently knocking the main door and asked them to open the door. At that time the petitioner no.2 was not present there and was on night duty. It is further submitted as soon as the door was opened those police officer and others rushed inside the room and asked the writ petitioner no.1 and 3 at once to hand over the child to the police. Since the petitioner No.2 the father of the child was not there, the writ petitioners requested the police officer to wait till the return of the petitioner no.2 on the next morning. However, the said police officers became furious and snatched the baby from the lap of the writ petitioner no.3 and as the writ petitioner- 1 protested, police arrested both of them and took them to the police station. At the police station while the petitioner no.1 was confined in the lock-up room, the petitioner no.3 was kept sitting on a bench at the office room. Thereafter the police from the police station handed over the child to the respondent no.6, when she and her associates with the child left. On the next morning both of them were released from the police station. It was also the case of the writ petitioners that have been made out in the instant writ application.
It is vehemently contended that this is a clear case of police atrocities and high handedness, where the police have misused their statutory power. It is then contended that the police has no legal authority to hold a raid at a residential house and to take away the minor child from the lawful custody of his biological father and gave to the mother without any order of a competent court.
It is further submitted that the father is the natural guardian of his child and keeping the child in his custody is not at all illegal and an offence. It is therefore contended for this illegal and unauthorized action of the police authorities they are liable to be proceeded against in accordance with law and accordingly necessary order be passed against them. On behalf of the respondent no. 6 an affidavit-in- opposition has been filed. Although it was not disputed about the pendency of matrimonial proceedings but it was claimed that her signature in the divorce papers was obtained under tremendous pressure by the writ petitioner and contended that she was never inclined to give up the custody of her child to the writ petitioner no.2. It is further submitted that in the month of August, 2013 she was forcibly driven out from her matrimonial home and on 14th September, 2013 she again returned there as she had no other place to reside. When the writ petitioner treated her shabbily and she was not allowed to remain there. The said incident was reported to the police immediately but no action was taken. However, on the next day i.e. on 15.09.2013 at 8.30 hrs., when she once again approached the Police, her complaint was recorded vide G.D. No. 873 dated 15.09.2013 and before that she over telephone informed the police about the incident. Thereafter on her repeated request around 12 noon the police officers went to her matrimonial home and on their request the writ petitioner handed over the child to her without any objection but it is the petitioner no.l who suddenly became agitated and started abusing her filthily. When police finding no alternative arrested him and returned to the police station at around 1 p.m. It is also contended that she has no knowledge when the divorce suit was filed in the court and the police if at all misbehaved with the petitioner no. 1 and 3.
Similarly, on behalf of the respondent no. 4 and 5 affidavit-in-opposition has been filed in Court as also two reports. The relevant general diary book was also produced before the court as directed. The Xerox copy of the relevant extracts of the general diaries are kept with the records. On behalf of the police authorities the allegation of raid at midnight has been categorically denied. It was also claimed that pendency of the matrimonial suit between the writ petitioner no. 2 and the private respondent no. 6 was never known to them, as also the claim of the writ petitioner that in connection with the said matrimonial suit, it was agreed between the parties that the custody of child shall remain with the petitioner no.2.
It is also denied that the police ever misbehaved with the writ petitioner no. 1 and 2 and it is claimed that since the writ petitioner no. 1 was creating noise and violence he was arrested under Section 151 Cr.P.C and after taking him to the police station he was released on bail bond. It is also denied that police ever arrested the writ petitioner no.3.
Heard the learned Counsel appearing on behalf of the parties considered their respective submissions and the materials on record viz., the two reports submitted from the side of the police and the relevant general diary book.
According to the writ petitioners, on 15th September, 2013 at midnight the police along with the private respondents no. 6 and others had been to their residence and forcibly took away the minor male child who was then in the custody of the writ petitioner no. 2, his father and natural guardian and thereafter the child was brought to the police station and the writ petitioner no. 1 and 3 under arrest. At the police station while the child was given in the custody of the respondent no.6, the petitioner no.1 and 2 were released on the next morning. However from perusal of G.D book maintained at the Belghoria P.S, I find on 15th September, 2013 at about 8.30 hrs. the private respondent no.6 came to the police station and reported that she was mentally misbehaved and filthily abused by her husband and then was driven out from her matrimonial home, after snatching away her three years old child, and sought for police assistance and such fact was recorded against G.D. entry no. 873. The next G.D in connection therewith, was recorded against G.D entry no. 905 dated 15.09.2013 at about 15.20 hrs. Where it was noted that the respondent no. 4 returned to the police station after recovering the lap baby of Smt. Dipinti Banerjee w/o Abhishek Banerjee, 1 Ramtaran Bhattacharjee Lane, Ariyadaha, Kolkata-57, who was under the custody of her husband. It was also noted as per the order of the Officer-in-Charge, the respondent no.3, the respondent no. 4 had been to the house of Abhishek Banerjee along with force and at that time the mother of the baby, respondent-6 demanded his custody and the father and mother-in-law made over the lap baby to his mother in a fit condition. Then it was noted as per the order of the Officer-in-Charge, the respondent no.3, the respondent no.4 made over the said male baby to his mother, the respondent no.6 after taking her signature in the margin of the said GD entry. It was also noted that the father-in-law Dipak Banerjee was brought under arrest under Section 151 Cr.P.C as he was creating noise and violence. On the left hand side margin of the said G.D entry, there is a further note, recorded in the hand writing of the respondent no.6, to the effect, " Receipt my lap baby namely Aditya Banerjee age 1 year 6 month from Belghoria P.S in a fit condition and I take over my baby who is recovered from my husband house." The only other relevant General Diary was against the G.D, entry no. 906 recorded at 50.35 hrs. on the same day. According to the said G.D. entry on being approached by one Tarun Chakraborty, Advocate the accused Dipak Banerjee was released on bail who was arrested under Section 107/151 Cr.P.C released on bail on condition that he will appear before the Court concern.
Thus, from the aforesaid G.D entries, it appears that on the complaint of the private respondent no. 6 police had been to her matrimonial home and recovered her minor son from the custody of his father, took him to the police station and then hand over to the respondent no. 6 and the entire incident took place between 8.30 hrs. to 15.20 hrs on 15.09.2013 and the writ petitioner no. 1 who was arrested at that time for creating noise and violence, was released on bail at around 15.35 hrs. and not at mid night as alleged by the writ petitioner. Nothing however was noted in the General diary book as to when the respondent no.4 left the police station for the matrimonial home of the respondent no.6 i.e. residence of the writ petitioner. In the aforesaid background, the issue as to when police had been to the residence of the writ petitioner, whether at mid night between 14.09.2013 and 15.09.2013 or on the next morning now being relegated to the orbit of disputed question of facts, and thus does not deserve to be gone into in exercise of writ jurisdiction at this stage. It will be kept open to the parties to seek determination of the same, if so advised before the appropriate forum.
However, from the aforesaid diarised materials it is prima facie evident, on being reported by the respondent no.6 that she was mentally tortured, misbehaved, abused filthily and threatened by her husband and then was driven out from her matrimonial home, who snatched away her male child and as she sought for police assistance, the respondent no.4 as directed by the respondent no.3, had been to the residence of the writ petitioners, recovered the child from the custody of his biological father and the natural guardian, the writ petitioner no.2 and arrested under Section 151 Cr.P.C the writ petitioner no.1 for allegedly creating noise and violence and then the child was given to the mother, the respondent no.6 from the police station and released petitioner no.1 on bail.
Now, on the face of the aforesaid materials the question arises for consideration whether, without any search warrant issued under Section 97 Cr.P.C by a competent Court and when police is not investigating a criminal case, where the child is the victim of kidnap or abduction or any other offence, it was lawful for the police to be at the residence of the writ petitioner took away the child from the custody of his biological father and natural guardian and then hand over the custody of the child to his mother from police station, without any order of Court after recovery, made over the custody of the child to his mother at the police station.
According, to the provisions of Section 97 of the Code of Criminal Procedure a competent Court referred thereunder, when has the reason to believe that any person is confined under such circumstances that the confinement amount to an offence, such Court can always issue a search warrant and the person to whom search warrant is directed may search for the person so confined and after making the search in accordance therewith, if the person so confined, is found shall immediately be taken before the Magistrate concern, who shall make necessary order as in the circumstances of the case seems proper. It is well settled the provisions of Section 97 Cr.P.C cannot be invoked for the recovery of a minor child from the custody of the biological father or mother, his or her natural guardian at the behest of either of them, as the custody of a child with his parents and, natural guardians, does not amount to any offence or can not be said that, the child is in wrongful confinement.
There is also no controversy that the police while investigating a case involving cognizable offences, without a search warrant issued by Court, always empowered to search any place for recovery of a victim of kidnap or abduction or of any other offence. However, after recovery of the victim, the question of custody is beyond the discretion of the police and vested with the Court.
In this case at hand, admittedly there was no search warrant issued under Section 97 Cr.P.C by any court nor in course of investigation of any case involving cognizable offence registered at the Belghoria Police Station police recovered the child. On the other hand, undoubtedly the entire exercise from the stage recovery of the child from lawful custody of the father and natural guardian till the handing over the custody of the child to the mother, also a natural guardian, respondent no.6 is absolutely without any authority of the law and is a clear instance of police high handedness and colourable exercise of power. The police authority by impugned action assume the jurisdiction vested on a Court under the Guardian and Wards Act. It may be noted that there is nothing on record at the time of conducting the search and recovery of the child from the residence of the writ petitioner any independent person was present there. The conduct of the police authority and their impugned action certainly deserves the legal action in terms of the Regulation 28 of the Police Regulation of Bengal. It goes without saying such action must be in accordance with law and in conformity with the principle of natural justice.
Last but not least it be noted, already by filing an affidavit the respondent no.6, the mother expressed her inability to keep the child in her custody because of her pre-occupations viz. her job and her old aunt who was looking after the child, has become ill, on her desire the custody of the child therefore has been given to the writ petitioners the father and natural guardian. The child is now in the custody of the writ petitioner no. 2.
The learned Registrar General of this Court is directed to communicate this order to the District Magistrate, North 24 Parganas as well as to the Director General of Police, West Bengal and Superintendent of Police North 24 Parganas for their information and necessary action.
The concerned authority must report compliance to this Court within a period of 4 months.
Urgent photostat copy of this judgement if applied for be supplied to the parties immediately.
(Ashim Kumar Roy, J.)