Prosenjit Jana vs State Of West Bengal & Anr
2023 Latest Caselaw 2586 Cal

17.04.2023 Sl. No.43.

D/L.

Mithun.

Ct.No.42.

CRR/1277/2023

Prosenjit Jana Vs.

State of West Bengal & Anr.

Mr. Debajyoti Deb, Adv.

Mr. Shyamal Mondal, Adv.

Mr. Somdyuti Parekh, Adv.

...for the petitioner.

The petitioner is the husband of the opposite party No.2.

On the basis of a written complaint submitted by the opposite

party No.2 on 24th March, 2023, Titagarh Police Station Case No.154 of

2023 under Sections 363/323/34 of the Indian Penal Code was

registered against the petitioner.

It is submitted by the learned Advocate for the petitioner that the

dispute between the parties revolves around the right of custody of their

children. The father of the children/petitioner herein are in custody of

their minor children. Petitioner initially prayed for issuance of search

warrant for recovery of the said children from the custody of their father.

In Criminal Revision No.13/21 the order passed by the learned

Magistrate was set aside holding, inter alia, that when the children are in

custody of their natural guardian, no such order of issuance of search

warrant can be passed. Subsequently, the opposite party filed an

application under Act VIII of 1860 praying for guardianship and custody

of said two children. In the said proceeding an application for interim

custody of the said children was filed by the opposite party.

Subsequently, the opposite party modified her prayer and she was given

right of visitation of the children. She also filed a criminal case under

Section 498A/323/406/363/365/354/506/34 of the Indian Penal Code

against the petitioner and other matrimonial relations. The said criminal

proceeding was quashed by a Coordinate Bench in CRR 171 of 2021 vide

judgment dated 14th December, 2022. Thereafter, this is the forth time of

the opposite party in order to malign the petitioner by filing a written

complaint on the basis of which a case under Sections 363/323/34 of

the Indian Penal Code has been registered.

It is contended by the learned Advocate for the petitioner that the

petitioner being the father is the natural guardian of their children.

When the children has been residing with the petitioner, prima facie case

of kidnapping does not stand. The allegation of committing hurt is also

false and illusory. Therefore, petitioner has prayed for quashing of the

said criminal proceeding.

The instant revision is admitted.

Petitioner is directed to serve notice upon the private opposite

party under registered sped post with acknowledgment due and file

affidavit of service within three weeks from the date of this order.

The State of West Bengal be served through the learned Public

Prosecutor, High Court, Calcutta.

In the meantime, the Investigating Officer shall not take any

coercive step against the petitioner till two weeks after Summer Vacation.

Liberty to mention.

( Bibek Chaudhuri, J. )