Smt. Bijaya Soren @ Murmu vs State Of Odisha And Others
2021 Latest Caselaw 12112 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                   CRLMC No. 1623 of 2020

 (An Application under Section 482 Code of Criminal Procedure, 1973)


Smt. Bijaya Soren @ Murmu                       ....            Petitioner

                               -versus-
State of Odisha and others                      ....      Opposite Parties


        Advocates appeared in the case by Hybrid mode:
  For Petitioner         :     Mr. Rabi Narayan Behera,
                               S.N. Sahoo, L.T. Pal &
                               L.K. Padhi, Advocates.

                                   -versus-

  For Opposite Parties         :      Mr. M.K. Mohanty,
                                      Additional Standing Counsel,
                                      (for opposite party no.1)
                                      Mr. Ajay Kumar Pradhan,
                                      Advocate
                                      Mr. S.K. Swain, Advocate
                                      (For opposite party nos. 2 and 3)

          CORAM:
           JUSTICE SASHIKANTA MISHRA
                             ORDER

24.11. 2021

SASHIKANTA MISHRA, J.

1. In the present application, filed under Section 482

Cr.P.C., the petitioner questions the legality and propriety of the

judgment passed by 1st Additional Sessions Judge, Rourkela on

05.11.2020 in Criminal Revision No. 19 of 2020 in reversing

the order dated 13.10.2020 passed by learned J.M.F.C. (Rural)

Panposh at Rourkela in CMC (Misc. Case) No. 149 of 2020.

Learned J.M.F.C., (Rural) Panposh at Rourkela, vide the

aforementioned order had allowed the prayer of the petitioner-

mother and issued a search warrant under Section 97 of Cr.P.C.

to search the house of the opposite parties and to produce the

female child kept with them before the court.

2. The facts of the case, sans unnecessary details are

that the petitioner filed a petition under Section 97 of Cr.P.C.

before learned J.M.F.C., (Rural), Panposh inter alia stating that

she had married one Surender Kumar Murmu and out of such

wedlock, a female child namely, Sanshita Murmu was born on

14.05.2018. Unfortunately, the husband of the petitioner died on

02.04.2020 and thereafter, the petitioner continued to stay in her

matrimonial home with her child, mother-in-law (opposite party

no.1) and brother-in-law (opposite party no.2). It is alleged that

the petitioner was tortured by the opposite parties who wanted

to drive her away from their home. The intention of the opposite

parties was to deprive the petitioner from the share of money

received by selling the property at their native place. But

somehow, the petitioner continued to reside with her in-laws.

On 28.09.2020 at about 10.45 A.M., the opposite parties drove

out the petitioner forcibly from their house, but kept her two

year old child with them and also went away to another quarter

in Rourkela. When the petitioner went to the said quarter, she

was not allowed to enter but was assured that her child would be

returned after two days. The petitioner again went to the quarter

of the opposite parties on 30.09.2020, but she was not allowed

to take her child and was not allowed even to enter into the

house. The petitioner approached Sector-7 Police Station who

directed her to approach Tangarpali Police Station within whose

jurisdiction the occurrence had taken place. But when the

petitioner approached the Tangarpali Police Station on the same

day, the IIC of the said P.S. asked her to obtain appropriate

order from the competent court for rescue of her child.

3. The opposite parties appeared before the Magistrate

and filed a joint show cause disputing the averments made in the

petition under Section 97 Cr.PC. However, the facts relating to

marriage of the petitioner, birth of the female child, death of the

husband of the petitioner etc. were admitted. As regards the

child, it was stated that the petitioner had voluntarily left the

matrimonial home by disclosing her intention to remarry and as

such, had requested her mother-in-law to keep her child under

her care and custody. It is stated that the petitioner left her

matrimonial home taking all her belongings but left behind her

child who is being looked after by the opposite parties.

Subsequently when the petitioner raised a dispute to get her

child back, a meeting was held in their Samaj but her claim was

turned down having regard to the unhealthy and criminal

atmosphere prevailing in the petitioner's house which was

considered detrimental for the progress of the child. The

allegation that the child was kept in their custody forcibly and

was confined was specifically denied by the opposite parties. It

was also pleaded that the necessary ingredients for exercise of

power under Section 97 of Cr.PC. are not present for which the

proceeding was not maintainable.

4. After hearing both sides, learned J.M.F.C., (Rural),

Panposh held that according to the Hindu Minority and

Guardianship Act. 1956, mother is considered as primary care

giver of children below the age of 5 years and that best interest

of child will be served, if she is in the custody of her mother. As

regards the objection regarding maintainability, it was held that

since the opposite parties have snatched away the child from the

petitioner without her will and are denying to handover the

custody of the child to her, the petition under Section 97 Cr.P.C.

is maintainable as the child is with the opposite parties who are

not entitled to its custody. As such, the petition under Section 97

Cr.P.C. was allowed and search warrant was issued directing the

concerned IIC to search the house of opposite parties and to

produce the female child before the Court.

5. Being aggrieved, the opposite parties carried the

matter in revision to the court of 1st Additional Sessions Judge,

Rourkela in Criminal Revision No. 19 of 2020. Learned 1st

Additional Sessions Judge considered the rival contentions put-

forth before him, the ingredients of the statutory provision and

several case laws to hold that the present opposite parties being

grandmother and paternal uncle of the child are not strangers to

the said child and that though they may not be preferential

guardian according to Section 2 of the Guardianship Act

(presumably, Hindu Minority and Guardianship Act), the

opposite parties can also be said to be guardians of the minor

child as they are having the care of the person of the minor at

present. It was further held that such custody cannot be treated

as confinement which amounts to an offence. Thus, it was held

that learned Magistrate had failed to assign reasons as to on

what basis he came to conclusion regarding confinement of the

child and that the same amounts to offence. On the above

findings, learned Additional Sessions Judge allowed the

revision by holding that learned J.M.F.C., had acted in excess of

his jurisdiction and accordingly set aside the impugned order.

The judgment passed by the revisional court is impugned in the

present application.

6. Before examining the correctness or otherwise of the

judgment passed by the revisional court as well as learned

J.M.F.C., this Court deems it proper to examine scope and

purpose of the power conferred under Section 97 of Cr.P.C.

7. Section 97 of Cr.P.C. runs as follows:

97. Search for persons wrongfully confined. If any District Magistrate, Sub-divisional Magistrate or Magistrate of the first class has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper."

A plain reading of the provision quoted above clearly

reveals that three conditions need to be satisfied for exercise of

order thereunder:

    i.     A person is confined.

    ii.    Such confinement amounts to an offence and

iii. The Magistrate has reasons to believe in the

existence of the aforementioned two conditions.

What is the meaning of 'confinement' and when can such

confinement become wrong or illegal so as to 'amount to an

offence?' The dictionary meaning of "confinement" is 'the

situation in which a person or animal is kept somewhere,

usually by force.' Thus, the application of force is sine qua non

for a situation to qualify as confinement vis-à-vis a person or an

animal. Section 340 of I.P.C. defines wrongful confinement as a

punishable offence depending on the period, place and intention

as delineated under Sections 343 to 348. For the confinement to

amount to an offence as required under Section 97 of Cr.P.C.

quoted above, the same must be as described under Section 340

IPC read with the penal provisions enumerated under Section

343 to Section 348 of I.P.C. Of course, every confinement

cannot be wrongful so as to constitute an offence. Therefore, the

facts and circumstances surrounding every confinement are to

be taken into account to determine whether the same is wrongful

or not because, unless it is wrongful it cannot partake the nature

of an offence so as to attract the provisions of Section 97

Cr.P.C.

8. The facts of the case may now be examined in the

backdrop of the aforementioned legal provisions and

propositions.

Admittedly, the petitioner is the biological mother of

the female child named Sanshita Murmu who is presently with

the opposite parties. Further admittedly, the opposite party no.1

is the grandmother and opposite party no.2 is the paternal uncle

of the said child. The date of birth of the child, as already

indicated is 14.05.2018 which makes her aged about 2 years as

on the date of filing of the application by her mother under

Section 97 of Cr.P.C. The fact that the petitioner had married

the son of opposite party no.1 and that her husband had died on

02.04.2020 is also not disputed. It is also not disputed that the

petitioner remained in her in-laws house for some time after

death of her husband, though the date on which she stopped

living there is in dispute inasmuch as according to her, she was

driven out by the opposite parties from her matrimonial home

on 28.09.2020 but according to the opposite parties, she left on

her own volition on 23.06.2020 with the intention of remarriage.

It is to be kept in mind that the proceeding under Section 97

Cr.P.C. is summary in nature which provides for emergent order

to be passed upon satisfaction of the Magistrate that the

confinement in question amounts to an offence. So it is not

required to go into the question as to on which date the

petitioner stopped residing with the opposite parties. From the

averments made in the petition under Section 97 Cr.P.C. and

show cause filed by the opposite parties, it is abundantly clear

that the mother has been denied access to her child. The

opposite parties have attempted to justify such denial of access

on the ground that the petitioner had voluntarily left her

matrimonial home. Now, even assuming that the petitioner had

voluntarily left her matrimonial home, can the same be a reason

to deny her access to the child who at the relevant time was

aged about 2 years? The answer can obviously be in the

negative. Once the biological mother is debarred from accessing

her own two year old child, it goes without saying that the

holding of the child by the grandmother or other persons

becomes entirely wrongful and hence, amounts to an offence.

Such being the factual position there can be no gainsaying that

as between the petitioner and the opposite parties, it is the

former, who has a natural and legal right over the child while

the latter do not have such right. A reading of the order passed

by learned J.M.F.C. (Rural) Panposh at Rourkela reveals that

the above aspects have evidently weighed upon the mind of the

learned Magistrate in holding that the opposite parties have

wrongfully confined the child.

9. Coming to the order passed by the revisional court,

it seems that the learned court below has approached the matter

from an entirely different perspective, i.e, from the point of

view of the right of custody of the child as per law. Even then, it

is seen that apart from being replete with repetitions the

impugned order is also found to contain several contradictions.

For instance, despite holding that the grandmother or the

paternal uncle may not be preferential guardians under the

Hindu Minority and Guardianship Act, it is held at the same

time that they can also be said to be guardians as they are

having care of the person of a minor at present. Further, it is

held that except for some allegations made in the petition filed

under Section 97 Cr.P.C., there is no material to substantiate the

allegations made with regard to kidnapping/forcible keeping

away of the minor child from the custody of the petitioner and

yet at the same time, it is also held that grounds taken by the

opposite parties that the petitioner on her own left the

matrimonial home and also handed over the custody of the

female child to them cannot be ignored completely. It is difficult

to reconcile both the observations as above inasmuch as in a

summary proceeding under Section 97 of Cr.P.C., the

Magistrate is required to record his satisfaction with regard to

the allegation of confinement and that the same amounts to an

offence before exercising the power conferred thereunder. Law

does not make it obligatory for the Magistrate to delve into the

merits of the rival contentions at that stage.

10. Having regard to the peculiar facts and circumstances

of the case as narrated in detail herein before, learned J.M.F.C.

was satisfied and very rightly held that the circumstances

warranted issuance of a search warrant. Even considering the

plea taken by the opposite parties that the petitioner voluntarily

left her matrimonial home with the intention of remarriage on

either 23.06.2020 or 30.09.2020 as the case may be, it is not

comprehended as to why would she turn around and seek to

return to her matrimonial home again. Moreover, even assuming

that she had left home with the intention of remarriage, the same

cannot be a reason to deprive her access to her own child. These

are relevant issues left entirely unanswered by the opposite

parties. The very fact that the opposite parties have opposed the

petitioner's prayer on the plea of her purported intention of

remarriage, by itself proves that they are holding the child

illegally. There is no law that a mother can no longer have access

to her minor child once she intends to remarry. Unfortunately,

these aspects have not been considered at all by the learned court

below. It is further observed that learned Magistrate has recorded

specific reasons for passing the order at paragraph-7 of the order,

but learned court below held that learned Magistrate has failed to

assign reasons. Clearly, the order of the learned Magistrate was

misread by learned court below. On the other hand, learned court

below appears to have misdirected itself in delving into several

case laws, mostly unnecessary, without bothering to look

underneath the facade of the rival contentions to ascertain the

truth of the matter. It further appears that the learned court

below, acting on a misconceived notion held that learned

Magistrate by passing the impugned order had acted in excess of

his jurisdiction whereas this Court, for the reasons cited

hereinbefore, finds that learned Magistrate has appreciated the

facts in the correct perspective, that too keeping the settled

position of law in mind. The impugned order passed by learned

court below, therefore cannot be sustained in the eye of law and

hence, warrants interference.

11. For the foregoing reasons therefore, the CRLMC is

allowed. The impugned order passed by learned 1st Additional

Sessions Judge, is hereby quashed and the order passed by

learned J.M.F.C., (Rural) Panposh at Rourkela is hereby

confirmed.

12. Accordingly, the CRLMC is disposed of.

(Sashikanta Mishra) Judge

Orissa High Court, Cuttack The 24th November, 2021/ B.C. Tudu