Abdur Rashid @ Md. Abdur Rashid vs Raju Mondal and Another

Ashim Kumar Roy, J.—The question arises in this criminal revision is whether the custody of a minor child aged about five years be remained with her grandfather being the father of his deceased mother or be given to her father who has been charge-sheeted along with his family members on the allegation of killing her mother by setting her on fire. At present, the minor child is lying in the custody of the grandfather and her father on being released on bail moved the court below invoking Section 97 of the Criminal Procedure Code for issuing of search warrant for the recovery of the child from the custody of father-in-law. The first court allowed the prayer of the father that is the opposite party no. 1 herein. The said order was challenged in a criminal revision before the Sessions Court and same was upheld. Now, the grandfather has challenged the said order of the first court and affirmed by a Sessions Court in this second revision.

It goes without saying that on the face of the specific statutory bar contained in Sub-Section (3) of Section 397 of the Criminal Procedure Code and an order of an inferior court can be interfered with, in second revision only if the court is satisfied that the order impugned is manifestly illegal and suffers from non-consideration of the materials on record and thus, brings out a situation which is completely an abuse of process of court and not otherwise.

There is no dispute, the father is the natural guardian of a child and therefore, claim of the father is more superior than that of the grandfather, i.e. father of the mother. At the same time, in the case in hand, father is a charge-sheeted accused on the allegation that he committed the murder of his wife and in presence of the child and therefore, child is a key witness to the occurrence and in the interest of fair trial, the custody should not be handed over even to her natural guardian so as to avoid any likelihood of the said child being gained over.

The learned Counsel for the petitioner vehemently contended immediately after the incident, the opposite party no. 1, the father along with other members of the family fled away abandoning the child. Thereafter the petitioner rescued the child and took her to his house and till now looking after her up bringing. She has been admitted in an English medium school and they are making all attempts so as to ensure her welfare. He further contended, the child in this case is very vital witness and if her custody is given to the accused person, they will prevail upon her. Lastly, the learned counsel for the petitioner submitted that the court assumes jurisdiction u/s 97 of the Code of Criminal Procedure to issue search warrant for recovery of a person, only when there is a specific case against whom search warrant has been sought for there is a case of wrongful confinement of the person for whose recovery the prayer for search warrant has been made. He further submitted in this case, when there is no case pending for an offence punishable u/s 341 IPC against the petitioner, the learned Magistrate was completely wrong in exercising his jurisdiction u/s 97 of the Code of Criminal Procedure and, therefore, the order impugned cannot be sustained.

On the other hand, the learned Counsel for the opposite party no. 1, the father of the child, vehemently contended that father is the natural guardian of the child and when he is claiming the custody of the child, his right should get preference over the claim of the grandfather, that is the father of his deceased wife, even when the father is a charge-sheeted accused for allegedly killing his wife. He further contended that already charge-sheet has been submitted, but charge-sheeted materials does not disclose that she was an eye witness to the occurrence. He pointed out that during investigation, she was produced before a competent court for recording her statement u/s 164 of the Criminal Procedure Code but as she disclosed about her ignorance, no statement was recorded and the child was only three years old, therefore, her evidence if any, shall have no probative value.

The learned Counsel for the opposite party No. 1 in support of his claim relied on three decisions of the co-ordinate Bench of this Court, namely, (1) Sudarshan Sau & Anr.-vs-State of West Bengal & Anr. Reported in 2007(1) C.Cr.L.R. (Cal.) 682, (2) Indrajit Saha Vs. The State of West Bengal and Another and (3) Nabamita Chowdhury alias Chaudhuri Vs. State, and vehemently argued that all the three decisions of a co-ordinate Bench of this Court unanimously held that the custody of the child must be the natural guardian of the child.

The learned Counsel for the State produced the case diary and submitted although the trial court heavily relied upon the order of the High Court, whereby the High Court granted bail to the accused-husband on consideration that in her statement recorded in the injury report, the victim exonerated the accused saying that she caught fire while cooking but the same was not correct and such fact was recorded on the statement of one Sarif Ahamed, who brought the patient to the hospital and not on the statement of the injured. In the injury report the signature of the said Sarif Ahamed is there, at the place provided for taking the signature or the L.T.I. of the injured. He further drew the attention of this Court to the statement of one of the witness, a relation of the victim, recorded u/s 164 Cr.P.C. as also to the statement of the minor recorded u/s 161 Cr.P.C.

In reply, the learned Counsel for the petitioner submitted that all the decisions relied upon by the learned Counsel for the opposite party no. 1, has no manner of application in the facts and circumstances of the case, inasmuch as in those cases, the order of issuance of warrant of arrest was made in connection with a specific case regarding wrongful confinement. However, in the present case, no such case is pending.

I have given my anxious and thoughtful consideration to the rival submissions of the parties. I do not find any illegality or infirmity in the order passed by the court below by allowing the prayer of such warrant for recovery of the minor at the behest of her father, her natural guardian, therefore, there is no ground for interference with such order. Accordingly, this criminal revision stands dismissed.

However, I direct the operation of the impugned order shall remain stayed for a period of 4 weeks. In the meantime, the parties shall have the liberty to approach the competent court under the Guardian and Wards Act claiming for custody. Criminal Section is directed to deliver urgent photostat certified copy of this order to the learned advocate of the parties, if applied for, as early as possible.