Orissa High Court
Smt. Bijaya Soren @ Murmu vs State Of Odisha And Others .... Opposite ... on 24 November, 2021
Author: Sashikanta Mishra
Bench: Sashikanta Mishra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 1623 of 2020
(An Application under Section 482 Code of Criminal Procedure, 1973)
Smt. Bijaya Soren @ Murmu .... Petitioner
-versus-
State of Odisha and others .... Opposite Parties
Advocates appeared in the case by Hybrid mode:
For Petitioner : Mr. Rabi Narayan Behera,
S.N. Sahoo, L.T. Pal &
L.K. Padhi, Advocates.
-versus-
For Opposite Parties : Mr. M.K. Mohanty,
Additional Standing Counsel,
(for opposite party no.1)
Mr. Ajay Kumar Pradhan,
Advocate
Mr. S.K. Swain, Advocate
(For opposite party nos. 2 and 3)
CORAM:
JUSTICE SASHIKANTA MISHRA
ORDER
24.11. 2021 SASHIKANTA MISHRA, J.
1. In the present application, filed under Section 482 Cr.P.C., the petitioner questions the legality and propriety of the judgment passed by 1st Additional Sessions Judge, Rourkela on CRLMC No. 1623 of 2020 Page 1 of 13 05.11.2020 in Criminal Revision No. 19 of 2020 in reversing the order dated 13.10.2020 passed by learned J.M.F.C. (Rural) Panposh at Rourkela in CMC (Misc. Case) No. 149 of 2020. Learned J.M.F.C., (Rural) Panposh at Rourkela, vide the aforementioned order had allowed the prayer of the petitioner- mother and issued a search warrant under Section 97 of Cr.P.C. to search the house of the opposite parties and to produce the female child kept with them before the court.
2. The facts of the case, sans unnecessary details are that the petitioner filed a petition under Section 97 of Cr.P.C. before learned J.M.F.C., (Rural), Panposh inter alia stating that she had married one Surender Kumar Murmu and out of such wedlock, a female child namely, Sanshita Murmu was born on 14.05.2018. Unfortunately, the husband of the petitioner died on 02.04.2020 and thereafter, the petitioner continued to stay in her matrimonial home with her child, mother-in-law (opposite party no.1) and brother-in-law (opposite party no.2). It is alleged that the petitioner was tortured by the opposite parties who wanted to drive her away from their home. The intention of the opposite parties was to deprive the petitioner from the share of money received by selling the property at their native place. But CRLMC No. 1623 of 2020 Page 2 of 13 somehow, the petitioner continued to reside with her in-laws. On 28.09.2020 at about 10.45 A.M., the opposite parties drove out the petitioner forcibly from their house, but kept her two year old child with them and also went away to another quarter in Rourkela. When the petitioner went to the said quarter, she was not allowed to enter but was assured that her child would be returned after two days. The petitioner again went to the quarter of the opposite parties on 30.09.2020, but she was not allowed to take her child and was not allowed even to enter into the house. The petitioner approached Sector-7 Police Station who directed her to approach Tangarpali Police Station within whose jurisdiction the occurrence had taken place. But when the petitioner approached the Tangarpali Police Station on the same day, the IIC of the said P.S. asked her to obtain appropriate order from the competent court for rescue of her child.
3. The opposite parties appeared before the Magistrate and filed a joint show cause disputing the averments made in the petition under Section 97 Cr.PC. However, the facts relating to marriage of the petitioner, birth of the female child, death of the husband of the petitioner etc. were admitted. As regards the child, it was stated that the petitioner had voluntarily left the CRLMC No. 1623 of 2020 Page 3 of 13 matrimonial home by disclosing her intention to remarry and as such, had requested her mother-in-law to keep her child under her care and custody. It is stated that the petitioner left her matrimonial home taking all her belongings but left behind her child who is being looked after by the opposite parties. Subsequently when the petitioner raised a dispute to get her child back, a meeting was held in their Samaj but her claim was turned down having regard to the unhealthy and criminal atmosphere prevailing in the petitioner's house which was considered detrimental for the progress of the child. The allegation that the child was kept in their custody forcibly and was confined was specifically denied by the opposite parties. It was also pleaded that the necessary ingredients for exercise of power under Section 97 of Cr.PC. are not present for which the proceeding was not maintainable.
4. After hearing both sides, learned J.M.F.C., (Rural), Panposh held that according to the Hindu Minority and Guardianship Act. 1956, mother is considered as primary care giver of children below the age of 5 years and that best interest of child will be served, if she is in the custody of her mother. As regards the objection regarding maintainability, it was held that CRLMC No. 1623 of 2020 Page 4 of 13 since the opposite parties have snatched away the child from the petitioner without her will and are denying to handover the custody of the child to her, the petition under Section 97 Cr.P.C. is maintainable as the child is with the opposite parties who are not entitled to its custody. As such, the petition under Section 97 Cr.P.C. was allowed and search warrant was issued directing the concerned IIC to search the house of opposite parties and to produce the female child before the Court.
5. Being aggrieved, the opposite parties carried the matter in revision to the court of 1st Additional Sessions Judge, Rourkela in Criminal Revision No. 19 of 2020. Learned 1st Additional Sessions Judge considered the rival contentions put- forth before him, the ingredients of the statutory provision and several case laws to hold that the present opposite parties being grandmother and paternal uncle of the child are not strangers to the said child and that though they may not be preferential guardian according to Section 2 of the Guardianship Act (presumably, Hindu Minority and Guardianship Act), the opposite parties can also be said to be guardians of the minor child as they are having the care of the person of the minor at present. It was further held that such custody cannot be treated CRLMC No. 1623 of 2020 Page 5 of 13 as confinement which amounts to an offence. Thus, it was held that learned Magistrate had failed to assign reasons as to on what basis he came to conclusion regarding confinement of the child and that the same amounts to offence. On the above findings, learned Additional Sessions Judge allowed the revision by holding that learned J.M.F.C., had acted in excess of his jurisdiction and accordingly set aside the impugned order. The judgment passed by the revisional court is impugned in the present application.
6. Before examining the correctness or otherwise of the judgment passed by the revisional court as well as learned J.M.F.C., this Court deems it proper to examine scope and purpose of the power conferred under Section 97 of Cr.P.C.
7. Section 97 of Cr.P.C. runs as follows:
97. Search for persons wrongfully confined.
If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper."
CRLMC No. 1623 of 2020 Page 6 of 13 A plain reading of the provision quoted above clearly reveals that three conditions need to be satisfied for exercise of order thereunder:
i. A person is confined.
ii. Such confinement amounts to an offence and
iii. The Magistrate has reasons to believe in the existence of the aforementioned two conditions. What is the meaning of 'confinement' and when can such confinement become wrong or illegal so as to 'amount to an offence?' The dictionary meaning of "confinement" is 'the situation in which a person or animal is kept somewhere, usually by force.' Thus, the application of force is sine qua non for a situation to qualify as confinement vis-à-vis a person or an animal. Section 340 of I.P.C. defines wrongful confinement as a punishable offence depending on the period, place and intention as delineated under Sections 343 to 348. For the confinement to amount to an offence as required under Section 97 of Cr.P.C. quoted above, the same must be as described under Section 340 IPC read with the penal provisions enumerated under Section 343 to Section 348 of I.P.C. Of course, every confinement cannot be wrongful so as to constitute an offence. Therefore, the CRLMC No. 1623 of 2020 Page 7 of 13 facts and circumstances surrounding every confinement are to be taken into account to determine whether the same is wrongful or not because, unless it is wrongful it cannot partake the nature of an offence so as to attract the provisions of Section 97 Cr.P.C.
8. The facts of the case may now be examined in the backdrop of the aforementioned legal provisions and propositions.
Admittedly, the petitioner is the biological mother of the female child named Sanshita Murmu who is presently with the opposite parties. Further admittedly, the opposite party no.1 is the grandmother and opposite party no.2 is the paternal uncle of the said child. The date of birth of the child, as already indicated is 14.05.2018 which makes her aged about 2 years as on the date of filing of the application by her mother under Section 97 of Cr.P.C. The fact that the petitioner had married the son of opposite party no.1 and that her husband had died on 02.04.2020 is also not disputed. It is also not disputed that the petitioner remained in her in-laws house for some time after death of her husband, though the date on which she stopped living there is in dispute inasmuch as according to her, she was CRLMC No. 1623 of 2020 Page 8 of 13 driven out by the opposite parties from her matrimonial home on 28.09.2020 but according to the opposite parties, she left on her own volition on 23.06.2020 with the intention of remarriage. It is to be kept in mind that the proceeding under Section 97 Cr.P.C. is summary in nature which provides for emergent order to be passed upon satisfaction of the Magistrate that the confinement in question amounts to an offence. So it is not required to go into the question as to on which date the petitioner stopped residing with the opposite parties. From the averments made in the petition under Section 97 Cr.P.C. and show cause filed by the opposite parties, it is abundantly clear that the mother has been denied access to her child. The opposite parties have attempted to justify such denial of access on the ground that the petitioner had voluntarily left her matrimonial home. Now, even assuming that the petitioner had voluntarily left her matrimonial home, can the same be a reason to deny her access to the child who at the relevant time was aged about 2 years? The answer can obviously be in the negative. Once the biological mother is debarred from accessing her own two year old child, it goes without saying that the holding of the child by the grandmother or other persons CRLMC No. 1623 of 2020 Page 9 of 13 becomes entirely wrongful and hence, amounts to an offence. Such being the factual position there can be no gainsaying that as between the petitioner and the opposite parties, it is the former, who has a natural and legal right over the child while the latter do not have such right. A reading of the order passed by learned J.M.F.C. (Rural) Panposh at Rourkela reveals that the above aspects have evidently weighed upon the mind of the learned Magistrate in holding that the opposite parties have wrongfully confined the child.
9. Coming to the order passed by the revisional court, it seems that the learned court below has approached the matter from an entirely different perspective, i.e, from the point of view of the right of custody of the child as per law. Even then, it is seen that apart from being replete with repetitions the impugned order is also found to contain several contradictions. For instance, despite holding that the grandmother or the paternal uncle may not be preferential guardians under the Hindu Minority and Guardianship Act, it is held at the same time that they can also be said to be guardians as they are having care of the person of a minor at present. Further, it is held that except for some allegations made in the petition filed CRLMC No. 1623 of 2020 Page 10 of 13 under Section 97 Cr.P.C., there is no material to substantiate the allegations made with regard to kidnapping/forcible keeping away of the minor child from the custody of the petitioner and yet at the same time, it is also held that grounds taken by the opposite parties that the petitioner on her own left the matrimonial home and also handed over the custody of the female child to them cannot be ignored completely. It is difficult to reconcile both the observations as above inasmuch as in a summary proceeding under Section 97 of Cr.P.C., the Magistrate is required to record his satisfaction with regard to the allegation of confinement and that the same amounts to an offence before exercising the power conferred thereunder. Law does not make it obligatory for the Magistrate to delve into the merits of the rival contentions at that stage.
10. Having regard to the peculiar facts and circumstances of the case as narrated in detail herein before, learned J.M.F.C. was satisfied and very rightly held that the circumstances warranted issuance of a search warrant. Even considering the plea taken by the opposite parties that the petitioner voluntarily left her matrimonial home with the intention of remarriage on either 23.06.2020 or 30.09.2020 as the case may be, it is not CRLMC No. 1623 of 2020 Page 11 of 13 comprehended as to why would she turn around and seek to return to her matrimonial home again. Moreover, even assuming that she had left home with the intention of remarriage, the same cannot be a reason to deprive her access to her own child. These are relevant issues left entirely unanswered by the opposite parties. The very fact that the opposite parties have opposed the petitioner's prayer on the plea of her purported intention of remarriage, by itself proves that they are holding the child illegally. There is no law that a mother can no longer have access to her minor child once she intends to remarry. Unfortunately, these aspects have not been considered at all by the learned court below. It is further observed that learned Magistrate has recorded specific reasons for passing the order at paragraph-7 of the order, but learned court below held that learned Magistrate has failed to assign reasons. Clearly, the order of the learned Magistrate was misread by learned court below. On the other hand, learned court below appears to have misdirected itself in delving into several case laws, mostly unnecessary, without bothering to look underneath the facade of the rival contentions to ascertain the truth of the matter. It further appears that the learned court below, acting on a misconceived notion held that learned CRLMC No. 1623 of 2020 Page 12 of 13 Magistrate by passing the impugned order had acted in excess of his jurisdiction whereas this Court, for the reasons cited hereinbefore, finds that learned Magistrate has appreciated the facts in the correct perspective, that too keeping the settled position of law in mind. The impugned order passed by learned court below, therefore cannot be sustained in the eye of law and hence, warrants interference.
11. For the foregoing reasons therefore, the CRLMC is allowed. The impugned order passed by learned 1st Additional Sessions Judge, is hereby quashed and the order passed by learned J.M.F.C., (Rural) Panposh at Rourkela is hereby confirmed.
12. Accordingly, the CRLMC is disposed of.
(Sashikanta Mishra) Judge Orissa High Court, Cuttack The 24th November, 2021/ B.C. Tudu CRLMC No. 1623 of 2020 Page 13 of 13