JUDGMENT and ORDER {oral}
1. 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-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 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 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 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 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 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 –
(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 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 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, 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.
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 years who cannot speak out her mind. Page No. 12 Crl. Pet Nos. 257 of 2008
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 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 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.
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.