RAMA CHANDRA SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) Heard learned counsel for the parties.

(2.) The admitted facts are that the petitioner No. 1 is the maternal grandfather and petitioner No.2 is maternal uncle of the child Satyaprakash, who is now aged about 7 to 8 years. Opposite party No.2 married the daughter of petitioner No.l in January, 2005 and the child Satya Prakash was born out of their wedlock in January, 2006. In February, 2010 the daughter of petitioner No. 1 (mother of the child) died in unnatural circumstances for which the wife of petitioner No. 1 lodged FIR against opposite party No. 2 and his family members for commission of offences under Sections 498A/304B/ 34 of the IPC. On completion of investigation, charge-sheet was submitted against the accused persons, cognizance was taken and after commitment the case is pending trial in the Court of the learned Additional District and Sessions Judge, FTC, Cuttack. During investigation, opposite party No.2 and his mother were apprehended and were taken to judicial custody and therefore, the child-Satyaprakash was handed over to the petitioners and since then he has been staying in the house of the petitioners, who are taking care of him. After being released on bail, opposite party No.2 tiled an application under Section 97, Cr.P.C. before the learned Sub-Divisional Magistrate, Cuttack for issuance of search warrant on the allegation that the child has been confined by the petitioners and is not being handed over to opposite party No.2, though he is the legal guardian and that was registered as Criminal Misc. Case No. 18 of 2010. Initially order was passed for issuance of search warrant, but at the instance of the petitioners in criminal revision No. 844 of 2011 this Court set aside the order passed by the learned Sub-Divisional Magistrate and remanded the matter back for fresh hearing and disposal in presence of both the parties. Thereafter, the present impugned order has been passed.

(3.) The contention of the learned counsel for the petitioners is that keeping of the child-Satyaprakash by the petitioners in the facts and circumstances of the case does not amount to an offence of wrongful confinement and therefore, the Sub-Divisional Magistrate has no jurisdiction to issue a search warrant under Section 97, Cr.P.C. It is his further submission that the petitioners are taking good care of the child-Satyaprakash and have admitted him in a good school and the allegations made by the opposite party No.2 before the Sub-Divisional Magistrate that the petitioners are ill-treating the child and not providing him food and are not taking proper care of him are all false. Learned counsel for the petitioners has also drawn the attention of this Court to Annexure-4, i.e., copy of the enquiry report submitted to the learned Sub-Divisional Magistrate by the Tehasildar, Kissan Nagar on the direction of the former which reveals that the Tehasildar interacted with the child confidentially and the child did not complain of any ill-treatment by the present petitioners and stated that he was not deprived of any food nor he was suffering from mal-nour-ishment. The Tehasildar also learnt that the child was studying in nearby Saraswati Sishu Mandir, Jagannathpur. It is also his submission that opposite party No.2 is a taxi driver and most of the time he stays away from the house while driving the taxi to different places and it will not be possible on his part to look after the child properly.