Gauhati High Court
Sri Piyush Chamaria vs Sri Hemanta Jitani & Ors on 14 March, 2012
Author: I. A. Ansari
Bench: I. A. Ansari
Page No. 1
IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MEGHALAYA,
MANIPUR, TRIPURA MIZORAM AND ARUNACHAL PRADESH)
Criminal Petition No. 257 of 2008
Petitioner:
Sri Piyush Chamaria,
S/O Sri Ramesh Chamaria,
R/O Vinayak, AT Road, Tinsukia, Assam.
By Advocates :
Mr. GN Sahewalla, Mr. P Bora, Md. Aslam, Ms. M Jain.
- versus -
Opposite party:
1. Sri Hemanta Jitani,
S/O Manik Ch. Jitani,
R/O Sagar Papers,
Chirwapatty, Tinsukia.
2. Sri Dipak Goel,
S/O Shankar Lal Goel,
R/O M/S BS Automobiles,
Bara Bazar, Shillong.
3. Sri Deokinandan Bajaj,
S/O Late Chiranjailal Bajaj,
M/S Chiranjilal Deokinandan,
Haibargaon, Nagaon.
By Advocates:
Mr. RK Agarwal, Mr. Z Alam, Mr. M Talukdar, Mr. B Borah.
BEFORE
THE HON'BLE MR. JUSTICE I. A. ANSARI
Date of hearing & Order: 14th of March, 2012.
JUDGMENT & ORDER
{oral}
By order, dated 09-04-2008, passed in the Complaint Case No.
175C/2008, learned Additional Chief Judicial Magistrate, Tinsukia, while
directing issuance of summons against the three opposite parties herein,
who were arraigned, in the complaint, as accused Nos. 1, 2 and 3
respectively, further directed a search warrant to be issued, in terms of the
provisions of Section 97 Cr.P.C., for recovery of the complainant-
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petitioner‟s daughter, Shravya Chamaria, from the custody of the
accused-opposite party No. 3, namely, Sri Deokinandan Bajaj, and
directed the Officer-in-Charge of the Police Station concerned to
execute the search warrant. However, as the search warrant was not
executed on the ground that the child, in question, was within the
territorial jurisdiction of the district of Nagaon, the learned Magistrate
passed another order, on 18-04-2008, directing the search warrant to be
issued to the Superintendent of Police, Nagaon, for execution.
2. Aggrieved by the two orders aforementioned, namely, the order,
dated 09-04-2008, and the order, dated 18-04-2008, the accused-
opposite party herein filed a revision petition challenging therein not only
the said two orders, dated 09-04-2008 and 18-04-2008, but also the very
act of taking of the cognizance of the offences, as a whole, by the
learned Additional Chief Judicial Magistrate, Tinsukia. This revision gave
rise to Criminal Revision No. 10(2)/2008.
3. By judgment and order, dated 01-08-2008, as the learned Sessions
Judge, Tinsukia, has set aside the order, dated 09-04-2008, to the extent
that the same directed issuance of search warrant under Section 97
Cr.P.C., the present petitioner, who is, admittedly, the father of the child,
in question, has come to this Court with the help of the present
application, made under Section 482 Cr.P.C., seeking to get set aside the
judgment and order, dated 01-08-2008, aforementioned.
4. I have heard Mr. P Bora, learned counsel, for the complainant-
petitioner, and Mr. K Agarwal, learned counsel appearing on behalf of
the accused-opposite party.
5. Before I enter into the merit of the application, made under Section
482 Cr.P.C., it is appropriate to refer to certain relevant and material
aspects of law. To begin with, Section 361 IPC, which deals with
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kidnapping from lawful guardianship, needs to be taken note of. The
relevant provisions of Section 361 IPC, reads, "Whoever takes or entices
any minor under sixteen years of age, if a male, or under eighteen years
of age, if a female, ********, out of the keeping of the lawful guardian of
such minor, ********, without the „consent‟ of such guardian, is said to
kidnap such minor ***** from lawful guardianship."
6. In substance, what Section 361 IPC conveys is that when a person
takes any minor child out of the keeping of the „lawful guardian‟ of such a
minor without the „consent‟ of the guardian, then, he is said to have
committed kidnapping of such minor from the lawful guardianship. The
Explanation, appended to Section 361 IPC, is of greater relevance, in the
present case, inasmuch as the Explanation makes it clear that „lawful
guardian‟ will include not only natural guardian or a lawfully appointed
guardian, but also a person, who is lawfully entrusted with the care and
custody of such a minor, meaning thereby that when a natural guardian
hands over the care and custody of his/her minor child to another person,
then, even the person, who is so entrusted with the care and custody of
the minor, would become the lawful guardian of the minor and if
someone take such a minor without the „consent‟ of such a guardian, his
act of taking away of the minor from the care and custody of such a
guardian shall amount to kidnapping of the minor from „lawful
guardianship‟.
7. So far as Section 97 Cr.P.C. is concerned, it reads, "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
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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".
8. From a bare reading of Section 97 Cr.P.C., it becomes clear that it
has several parts. Broadly speaking, Section 97 Cr.P.C. can be divided into
two parts, namely, (i) when, amongst others, a 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 (ii) the person, if found, shall be, immediately,
taken before a Magistrate, who shall make such order as, in the
circumstances of a given case, seems proper. This shows that while there
may be an order for issuance of search warrant for recovery of the
confined person, the question of custody of the confined person would
be decided on such parameters as may be deemed proper in a given
case.
9. It is, thus, not necessary that a person, who succeeds, in getting a
search warrant issued for recovery of a minor, who has been allegedly
kept in „confinement‟, would not become automatically entitled to the
custody of such a minor. It is one thing, therefore, to be able to get a
search warrant issued for recovery of a person, who is alleged to be
illegally confined, and it is quite another to obtain the custody of such a
person if and when such a person is, on being found, produced before
the Magistrate in terms of the provisions of Section 97 Cr.P.C.
10. What is also important to note, while dealing with the scope of
Section 97 Cr.P.C., is that the recovery of an illegally confined minor need
not necessarily take place from custody of the person, who had
kidnapped the minor from lawful guardianship of another person. As an
illustration, one may say that X and Y, combined together, kidnap a
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minor, A, from the custody of his parents, namely, B and C and hand over
the custody of the minor to Z pretending themselves (i.e., X and Y) that
they (X and Y) are parents of the minor A. In such circumstances, Z may
not be a part of the commission of the offence of kidnapping from lawful
guardianship, but the act of wrongful „confinement‟ of the minor will exist
and there will be no impediment, in such a case, on the part of a
Magistrate to get such a minor recovered from the custody of Z by issuing
a search warrant as contemplated by Section 97 Cr.P.C. and Z will not
have the right to refuse to hand over the child on the ground that so far
as he (Z) himself is concerned, he (Z) is innocent.
11. What is, therefore, material for the purpose of enabling a Magistrate
to issue search warrant, under Section 97 Cr.P.C., is the establishment of
the fact that a person has been wrongfully kept confined and/or that the
„confinement‟ amounts to an offence, but it is not necessary that the
person, in whose custody the confined person is, ultimately, found, is
himself a kidnapper.
12. In short, thus, the test, under Section 97 Cr.P.C., is the wrongful
„confinement‟ of the victim or that the „confinement‟ must amount to an
offence and it is not necessary that the person, who, eventually, holds the
custody of the kidnapped person, must himself or herself be the offender.
In other words, a person may innocently keep, in his/her custody, a minor
child, who has been kidnapped, without actually knowing about the
kidnapping, but this would not divest the Magistrate of his power, under
Section 97, to issue search warrant and get the child recovered.
13. What is also important to bear in mind is that wrongful
„confinement‟ has been defined by Section 340 IPC thus, "Whoever
wrongfully restraints any person in such a manner as to prevent that
person from proceeding beyond certain circumscribed limits is said to
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wrongfully confine that person". From the definition so given, it is evident
that „wrongful confinement‟ is a species of „wrongful restraint‟ as defined
in Section 339 IPC. While, in „wrongful restraint‟, there is only a partial
suspension of one‟s liberty, „wrongful confinement‟ reflects total
suspension of liberty beyond certain prescribed limits. The period of
suspension is immaterial for constituting an offence of „wrongful
confinement‟ or „wrongful restraint‟. When a person is restrained and is
prevented from going, where he has a right to go, the restraint becomes
wrongful if such restraint is not in exercise of any right, power or authority
under any law.
14. „Wrongful confinement‟ is an offence against human body. Thus,
when one man compels another to stay in any given place against his
will, he imprisons that other person just as much as he has locked him up in
a room. The act of compelling a man to remain within a prescribed limit
against his will, and without right, authority or power under the law,
amounts to his imprisonment and this imprisonment is nothing, but
„wrongful confinement‟. When a minor is kept against the will of the
person, who held the custody of such a child and/or who is entitled to
take the custody of the child, such detention would amount to „wrongful
confinement‟, for, in such a case, it is the will of the person, who is entitled
to have custody of such a child, which will be the will of the child, for, the
child's willingness or „consent‟ would be immaterial unless the welfare of
the child, in a given case, demands removal of the child from the custody
of the person, who is, otherwise, entitled to keep the custody of the child.
Guardian and custodian are not synonyms with each other. Thus, even
when a parent, who, with impunity, snatches away a child from the lawful
custody of the other parent, who held such custody and who is entitled to
have the custody of the child under the law - personal, statutory or
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otherwise - such snatching away of the child and his detention against
the will of the parent in whose custody the child was, would amount to an
offence of „wrongful confinement‟.
15. What emerges from the above discussion is that it is an incorrect
proposition of law that a father would never be held liable for offence of
wrongful „confinement‟ if he detains the child by having snatched her
away from the mother, who was, under some authority of law, had, at the
time of so snatching away the child, the custody of the child and is
entitled to have custody of the child.
16. Coupled with the above, it is also worth pointing out that minority‟
under the Hindu Minority and Guardianship Act, 1956, means, according
to Section 4(a), a person, who has not completed the age of 18 years,
and the „guardian‟ means, in terms of Section 4(b) of the Hindu Minority
and Guardianship Act, 1956, a person having the care of the person of a
minor or of his property or of both, his person and property, and includes-
(i) a natural guardian,
(ii) a guardian appointed by the will of the minor's father or
mother,
(iii) a guardian appointed or declared by court, and
(iv) a person empowered to act as such by or under any
enactment relating to any court of wards;
„Natural guardian‟ has a specific meaning inasmuch as
Section 4(c) lays down that „natural guardian‟ means any of the
guardians mentioned in Section 6. Let me, therefore, turn to Section
6, which, I notice, reads as under:
"6. Natural guardians of a Hindu minor- The „natural guardian‟ of a
Hindu minor, in respect of the minor's person as well as in respect of
the minor's property (excluding his or her undivided interest in joint
family property), are -
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(a) in the case of a boy or an unmarried girl-the father, and after
him, the mother;
Provided that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried
girl-the mother, and after her, the father;
(c) in the case of a married girl-the husband;
Provided that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
17. From a bare reading of Section 6, what becomes crystal clear is
that under Hindu Law, in the case of a boy or an unmarried girl, it is the
father, who is the „natural guardian‟, and after the father, it is the mother,
who is the natural guardian subject to, however, the proviso that no
person shall be entitled to act the natural guardian of a minor under the
provisions of Section 6 -
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
18. In short, in the case of a boy or an unmarried girl, it is the father,
who is the natural guardian. This would logically mean that any person,
other than the father, would not be a natural guardian, but may be
appointed as a guardian in terms of the provisions of Sections 6 and 7 of
the Guardian and Wards Act, 1890, inasmuch as Section 7 empowers
Court to appoint a person as a guardian for the person or property of a
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minor if the Court is satisfied that such appointment is for the welfare of
such a minor.
19. Bearing in mind the above aspects of law, let me, now, turn to the
complaint, which has become the basis for the entire process of issuance
of search warrant and the passing of the impugned order by the learned
Sessions Judge setting aside the issuance of search warrant.
20. The complainant‟s case is, in brief, thus: The complainant, who is a
citizen of India, entered into wedlock with Smti Madhu Chamaria, who
died leaving behind the complainant as her husband and a minor
daughter, aged about 2 ½ years. Following the death of the
complainant‟s wife, the relative of the deceased lodged a case against
the complainant and his parents and all of them got arrested and they
were released from custody after about two months. Though the
complainant alleges that the case, hoisted against him and his parents, is
false, we are not concerned, in the present case, with the question as to
whether the case, against the complainant and his parents, is or is not
false.
21. What is important is the fact that the complainant states, in his
complaint, that while he was under judicial custody, the care and
custody of his minor daughter was given by him to his uncle and aunt,
namely, Suresh Jajodia and Shobha Jajodia respectively. The
complainant also alleges that on 01-12-2007, the accused-opposite party
Nos. 1 and 2, namely, Hemanta Jitani and Dipak Goel, both relatives of
deceased Madhu Chamaria, came, on 01-12-2007, to the house of Bimal
Chamaria, where Shobha Jajodia (i.e. wife of Suresh Jajodia) along with
Shravya Chamaria lived, and forcibly took away Shravya Chamaria from
the hands of Smti Shobha Jajodia despite protest raised by her. Hence,
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the alleged taking away of the child by Hemanta Jatani and Dipak Goel
was without the „consent‟ of the complainant and that, too, while he was
in police custody and though a case was lodged, in this regard, by Suresh
Jajodia, the police did not register any case and did not investigate the
same. On being released on bail, on 03-02-2008, when the complainant
made inquiry from accused Nos. 1 and 2 about his missing daughter, they
refused to give any information about the baby to the complainant.
Having, however, learnt, after a few days, that the accused Nos. 1 and 2
had, in the meantime, handed over the child to accused No. 3 and that
since then, the child had been in the custody of accused No. 3, the
complainant claims that he telephoned the accused No. 3 and though
accused No. 3 admitted that the child was with him, but he refused to
return to the complainant the complainant‟s child and, in the meanwhile,
according to the information received by the complainant, the surname
of the child had been changed by accused No. 3 from „Chamaria‟ to
„Bajaj‟ to frustrate the process of law. The complainant further alleges that
though the complainant had got his daughter admitted, in a school, for
proper education before the death of his wife, the illegal „confinement‟ of
the child by the accused person had deprived the child of continuous
education.
22. Urging, therefore, the Magistrate to take cognizance of offences
under Sections 120(B)/363/365/368/34 IPC and issue process of law against
the accused, the complainant also sought for issuance of search warrant
for recovery of his minor daughter. The learned Additional Chief Judicial
Magistrate, as already pointed out above, directed issuance of search
warrant, on 09-04-2008 and, then, on 18-04-2008.
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23. This Court, at this stage, has to proceed on the assumption that the
allegations, made in the complaint by the complainant-petitioner, are
true and determine, on such assumption, if the issuance of search
warrant, for recovery of the said child, was illegal and/or interference
therewith by the learned Sessions Judge was justified and is sustainable.
24. The reasons, assigned by the learned Sessions Judge for setting
aside the order directing issuance of search warrant (as can be discerned
from the judgment and order, dated 01-08-2008) read as under:
"But the ld. Magistrate resorted to the provision of Section 97 Cr.P.C.
without recording his satisfaction that Miss Shravya Chamaria, the
daughter of the respondent was confined by revisionist No. 3 in such
circumstances which amount to an offence. As per allegations of the respondent, the child was not kidnapped by the revisionist No.
3. The child was allegedly kidnapped by the revisionists Nos. 1 and 2 and the child was handed over to the revisionist No. 3. he simply kept the child in his custody as her mother is no longer alive, as her father and grand parents were in jail. So, the revisionist No. 3 is the only person alive to take the custody of the child. Even if the child was kidnapped by some persons and gave her to the revisionist No. 3, who is her maternal grand father, it can not be said that he wrongfully confined the child. What he did, he did out of his obligation as the grandfather of the child. The revisionist No. 3 did not deny that the child was in his custody which implies that he had no intention to wrongfully confine the child. Then again, it has not been alleged that the revisionist No. 3 refused to hand over the child to the respondent. No such allegation is found.
We do not know what led the ld. Magistrate to believe that the child was wrongfully confined by the revisionist No. 3 and prompted him to issue the search warrant for recovery of the child specially when the child in question is aged about 2 ½ years who cannot speak out her mind.
Crl. Pet Nos. 257 of 2008 Page No. 12 In my view, if the child in question was kidnapped and wrongfully confined by the revisionist No. 3, the respondent could/should have approached this Court under Section 6 of the Hindu Minority and Guardianship Act as because a Criminal Court cannot determine the question of guardianship of a minor child.
This being the position, without referring to the merit of the case, the order passed u/s 97 Cr.P.C. by the ld. Magistrate is ex- facie without jurisdiction and hence, bad in law."
25. I have already pointed out above that what Section 97 requires is „confinement‟ of a person, which amounts to an offence, and it is not necessary that the person, who, ultimately, holds the custody of the minor is innocent or not. If a Magistrate is satisfied that a minor has been wrongfully confined, it is his duty to issue search warrant for recovery of such a child even from the custody of such a person, who may hold the custody of the child innocently or without knowing the reality.
26. In the case at hand, however, the complainant has categorically and, in no uncertain words, stated that he did, on phone, talk to accused- opposite party No. 3 and though the accused-opposite party No. 3 admitted that he was keeping the child, in question, in his custody, yet the accused-opposite party No. 3 refused to return the daughter of the complainant to him. In such circumstances, it cannot be prima facie said that the accused-opposite party No. 3 had been holding the custody of the said child innocently, because, in the light of the definition of Section 361 IPC including the Explanation appended thereto, when the child, in the present case, was handed over by the natural guardian to his uncle and aunt, the alleged taking away of the child by the accused Nos. 1 and 2 amounted to prima facie a case of kidnapping from lawful guardianship and the accused No. 3, though may be maternal Crl. Pet Nos. 257 of 2008 Page No. 13 grandfather, has prima facie aided and abetted the said acts of accused Nos. 1 and 2.
27. The second, reason assigned by the learned Sessions Judge, is that the complainant should make an application under Section 6 of the Hindu Minority and Guardianship Act, 1956. This, again, is wholly misconceived in law inasmuch as Section 6 of the Hindu Minority and Guardianship Act, 1956, merely describes as to who the natural guardians are.
28. In the case at hand, since the child, in question, is still less than 18 years old, it is the complainant, who is the natural guardian. Anyone, including the accused No. 3, if desirous of taking the custody of the said child, may make appropriate application(s) under Section 7 of the Guardianship and Wards Act, 1890. Instead of driving the accused- opposite party and, particularly, accused-opposite party No. 3, to make application for his own appointment as a guardian of the said minor child, it was wholly wrong and illegal, on the part of the learned Sessions Judge, to ask the present complainant-petitioner to seek his remedy by being appointed as a guardian of the said minor child. When the complainant- petitioner is the natural guardian, there is no question of his being appointed as a guardian; rather anyone, other than the natural guardian can seek an appointment to be made by taking recourse to the provisions of Guardian and Wards Act, 1890. Both the material grounds, on which the learned Sessions Judge has interfered with the issuance of search warrant, are, thus, not tenable in law. Instead of driving the accused-opposite party No. 3 to take recourse to Section 7 of the Hindu Minority and Guardianship Act, 1890, the learned Sessions Judge directed the complainant, who is, otherwise, also the natural guardian, to seek his remedy by taking recourse to Section 6 of the Hindu Minority and Crl. Pet Nos. 257 of 2008 Page No. 14 Guardianship Act, 1956. Though not formally recorded by the learned Magistrate as to why he deemed it necessary to issue search warrant, yet, what cannot be ignored is that the necessity, for issuance of search warrant, in terms of Section 97 Cr.P.C., stood well established in the present case.
29. A revisional Court cannot mechanically interfere with an order of issuance of search warrant inasmuch as it is the duty of the revisional Court to interfere with an order only when the order is, otherwise, illegal, improper or incorrect. It was, therefore, incumbent, on the part of the learned Sessions Judge, to look into the complaint and materials on record to determine if there was sufficient justification for issuance of search warrant. Since the materials on record, as already indicated above, revealed sufficient grounds warranting exercise of power in terms of Section 97 Cr.P.C., the learned Sessions Judge ought not to have interfered with the orders, dated 09.04.2008 and 18.04.2008.
30. Having considered the matter in its entirety, this Court is of the firm view that if the impugned order, passed by the learned Sessions Judge, Tinsukia, is not interfered with by this Court, it would cause serious miscarriage of justice, when the order, dated 09.04.2008 read with the order, dated 18.04.2008, do not, in any way, in the facts and attending circumstances of the present case, suffer from any infirmity, legal or factual.
31. This application, therefore, made under Section 482 Cr.P.C., succeeds. The impugned judgment and order, dated 01-08-2008, passed by the learned Sessions Judge, Tinsukia, shall accordingly stand set aside and the orders, issued by the learned Additional Chief Judicial Magistrate, Tinsukia, are hereby upheld.
Crl. Pet Nos. 257 of 2008 Page No. 15
32. Before parting with this application, it may be pointed out that Mr. K Agarwal, learned counsel, has submitted that the accused-opposite party No. 3 would produce the child in the Court of learned Additional Chief Judicial Magistrate, Tinsukia. Though Mr. P Bora, learned counsel for petitioner, vehemently objects to the submission so made, this Court allows, as a temporary measure, the accused-opposite party No. 3 to produce the child in the Court of learned Additional Chief Judicial Magistrate, Tinsukia, in connection with the complaint, in question, on 26- 03-2012, and till then, the search warrant, in question, shall be kept in abeyance. Upon production of the child, in question, the learned Court below shall determine, in the light of the facts as may be available on record and the law relevant thereto, the question of further custody of the child.
33. It is, however, made clear that whatever observations have been made by this Court are expressed on the basis of the materials on record and shall be treated as tentative in nature and shall not, in any way, affect the trial of the accused persons.
34. With the above observations and directions, this criminal petition shall stand disposed of.
JUDGE Paul Crl. Pet Nos. 257 of 2008