SRILEN TALUKDAR Vs. TALUKDAR

JUDGEMENT

(1.) THIS revision petition arises out of the order dated 10 -7 -1985 passed by the learned Judicial Magistrate, Gauhati, in Case No. 101 -M of 1985.

(2.) THIS is dispute between the father and the mother of the child, Chandamita, relating to the custody of the child. The learned counsel of both side have submitted that the impugned order 10.7.1985 is an order passed under section 97 Cr.P.C. The statement of the respondent mother shows that the child was with her, but the petitioner -father, in March, 1984, snatched the child from her mother and has been keeping the child with him. On the basis of the statement and the petition filed by the respondent -mother, the learned Magistrate issued a search warrant. It is submitted at the bar that the child has not completed 5(five) years and the child is at present in the custody of the respondent -mother in view of the order aforesaid. I am of the view that the father taking away his own child guardian. Therefore, the jurisdiction under section 97, Cr. P.C. cannot be excised. The question whether the interest of the child requires custody with mother of father is to be decided in a Civil Court. That apart, the order of the learned Magistrate dated 10 -7 -1985 does not show that he has reasons to believe that the confinement amounts to an offence in the nature and the circumstance of the case. The reason for issuing the warrant is : "In view of her age it is suitable for her to live with her mother. In connection with the case I think it is required to rescue her". The finding which has been given by the learned Magistrate is only to be decided by the Civil Court, and not not by the Criminal Court as already stated. In this view of the matter, the order dated 10 -7 -1985 and the proceedings in Case No. 101M/85 are liable to be quashed.

(3.) MR . B. Sharma, learned counsel for the respondent submits that he shall file an application in the proper forum for the child with -in a week; and that the status quashed as on today as to the custody the child may be maintained. Mr. B. K. Sharma, learned counsel for the petitioner submitted that the custody of the child is to be given to the father if father proceeding is quashed.