Calcutta High Court (Appellete Side)
Krishna Ghorai & Anr vs The State Of West Bengal & Anr on 2 May, 2016
Author: R.K. Bag
Bench: Ranjit Kumar Bag
Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
The Hon'ble Mr. Justice Ranjit Kumar Bag
CRR 2073 of 2012
Krishna Ghorai & Anr.
Versus-
The State of West Bengal & Anr.
For the petitioners : Mr. Navanil De
For the Opposite Party No.2 : Mr. Ashis Kr. Sanyal
Mr. Pratip Kumar Chatterjee
Heard On: 02.05.2016
Judgment On: 02.05.2016
R.K. Bag, J.
The petitioners have challenged the judgement and order dated May 21, 2012 passed by learned Additional Sessions Judge, Fast Track, 1st Court, Tamluk in Criminal Revision No. 2345 of 2011 by affirming the order dated November 15, 2011 passed by learned Judicial Magistrate, Haldia in C. R. No. 304 of 2011 by filing this revision under Section 401 read with Section 482 of the Code of Criminal Procedure.
2. It appears from the materials on record that the Opposite Party No.2 filed a petition of complaint before the court of learned Magistrate praying for search warrant under Section 97 of the Code of Criminal Procedure on the ground that the present petitioners confined the minor daughter of the Opposite Party No.2 and the said confinement amounts to an offence under Section 342 of the Indian Penal Code. Learned Magistrate issued search warrant under Section 97 of the Code of Criminal Procedure against the present petitioners. The said order passed by learned Magistrate was affirmed by learned Additional Sessions Judge in Criminal Revision No. 2345 of 2011. The petitioners being the maternal grand parents of the minor child have challenged the order passed by learned Additional Sessions Judge in Criminal Revision No. 2345 of 2011.
3. Mr. Navanil De, learned counsel for the petitioners submits that the petitioners kept their grand-daughter in their custody and the confinement of the grand-daughter in the custody cannot amount to an offence for issuance of search warrant under Section 97 of the Code of Criminal Procedure. According to Mr. De, the order passed by learned Additional Sessions Judge is liable to be set aside.
4. Mr. Ashis Kr. Sanyal, learned counsel for the Opposite Party No.2 submits that the Opposite Party No.2 happens to be the natural guardian of the minor daughter. He further submits that the wife of the Opposite Party No.2 used to live in the house of the petitioners who happen to be the parents-in-law of the Opposite Party No.2 and the daughter of the Opposite Party No.2 was illegally confined in the custody of the petitioners who are maternal grand parents of the minor child. According to Mr. Sanyal, the issuance of search warrant was justified under the law as confinement of the minor child of the Opposite Party No. 2 by the petitioners amounts to an offence under the law.
5. Having heard the learned counsel representing the respective parties and on consideration of the materials on record I find that search warrant under Section 97 of the Code of Criminal Procedure was issued against the petitioners on the ground that confinement of the minor child of the Opposite Party No.2 by the petitioners amounts to an offence under Section 342 of the Indian Penal Code. It appears from record that the petitioners are the maternal grand parents of the minor child for whose recovery search warrant was issued under Section 97 of the Code of Criminal Procedure. The confinement of grand daughter by the grand parents cannot amount to an offence by any stretch of imagination. I am unable to accept the contention made by Mr. Sanyal that confinement of the minor child of the Opposite Party No.2 by the petitioners amounts to an offence of kidnapping. Since the confinement of the minor daughter in the custody of the petitioners cannot amount to an offence under the law, the order of issuance of search warrant by learned Magistrate and affirmation of the said order by learned Additional Sessions Judge cannot stand in the eye of law.
6. In view of my above findings, the judgement and order dated May 21, 2012 passed by learned Additional Sessions Judge, Fast Track, 1st Court, Tamluk in Criminal Revision No. 2345 of 2011 by affirming the order dated November 15, 2011 passed by learned Judicial Magistrate, Haldia in C. R. No. 304 of 2011 is set aside.
Criminal revision is, thus, allowed.
Let a copy of this judgement and order be sent down to learned court below for favour of information and necessary action.
Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis after compliance with all necessary formalities.
( R. K. Bag, J. )