SAIKAT SAHA Vs. KAKALI PANJA

JUDGEMENT

(1.) This application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 is at the instance of the accused and is directed against the order dated March 8, 2010 passed by the learned Additional Chief Judicial Magistrate, Uluberia, District Howrah in complaint case No.12 C of 2010 thereby rejecting the prayer for cancellation of order dated January 12, 2010 in view of the provision under Section 70(2) of the Cr.P.C. and thereby directing the officer, Amta P.S. to hand over the baby to the wife(1) opposite party.

(2.) The short fact is that the opposite party No.1 is the married wife of the petitioner/ husband. One child was born to them in the wedlock and that child, a daughter, is now seven years of age. The wife left her matrimonial home and is now living in adultery with her brother-in-law (sister's husband). The husband made several attempts to lead a normal conjugal life with the wife in vain. Thereafter on April 28, 2009, the wife took away all her ornaments, shari and other valuable articles and she left her matrimonial home with her brother-in-law. Then on July 25, 2009 when the minor daughter was returning from her school namely, Sishu Tirtha School after her examination and the father of the husband was to take her back to his house, the wife along with other persons lifted the daughter in a Maruti van by force. Thereafter on December 25, 2009, the wife, her brother and sister-in-law came to the house of the husband and assaulted his aged parents and drove out the parents from his house in absence of the husband for which the husband had to lodge the said incident with the O.C., Amta P.S., but no action was taken by police. Then, again on December 28, 2009, the wife, her brother and sister-in-law came to his house and assaulted him brutally. The neighbours were annoyed and they filed a mass petition to the concerned P.S. Being aggrieved, on the same day the wife lodged a false complaint against the husband at Uluberia P.S. stating that when she went to her in-law's house to bring some important papers they were assaulted and her daughter was taken away forcibly for which she wanted to lodge an FIR with the Amta P.S., but police refused to take her complaint. Then, she filed a complaint case against the husband and she prayed for recovery of her minor daughter in a separate petition under Section 97 of the Cr.P.C. The husband filed an application for cancellation of the search warrant issued on January 12, 2010 under Section 97 of the Cr.P.C. But the learned Additional Chief Judicial Magistrate, Uluberia refused the prayer of the husband. Being aggrieved by the impugned order, the husband has preferred this application.

(3.) Mr. Mobakshar Islam, the learned Advocate for the husband, submits that on the basis of the petition of complainant, the learned Additional Chief Judicial Magistrate, Uluberia took cognizance of the offence under Section 323 of the I.P.C. and in fact no cognizance of any offence relating to restraint or confinement of the minor was prima facie made out. The learned Magistrate did not take cognizance of any other offence except the offence under Section 323 of the I.P.C. So issuance of search warrant for recovery of the minor daughter is without any jurisdiction and it is not sustainable. He also contended that the Section 70(2) of the Cr.P.C. lays down the issuance of warrant of arrest and the period during which such warrant of arrest shall remain in force. It has nothing to do with the search warrant issued under Section 97 of the Cr.P.C. Thus, he submitted that the order of rejection of the prayer for cancellation of the order dated January 12, 2010 is not sustainable at all and it must be set aside.