If the Court ultimately holds that keeping of
the child in the manner alleged in the subsequent
application, in fact amounts to illegal confinement, then
the same cannot be restricted to any particular date.
Therefore, in particular, looking at the statutory intent
behind enactment of Section 97 of Cr.P.C. it can be safely
held that in the peculiar facts and circumstances of the
present case, the filing of the subsequent application
cannot be treated as barred by law. Moreover, as has been
argued by Mr. Pattanayak, there is no concept of res
judicata in criminal jurisprudence. From the facts
narrated hereinbefore, it is evident that there is dispute
between the petitioner and her husband and that their 2
and ½ years child (at the relevant time) was alleged taken
away forcibly by opposite party no.3 and the petitioner
was not allowed to meet her child. Further, the child is
said to be kept confined to a room and there is also some
danger to its life. Now, whether the allegation as above is
correct and/or whether this would amount to wrongful
confinement of the child would depend on the facts and
circumstances of the case but it would suffice to say that
if the allegations leveled by the petitioner are accepted on
their face value, the possibility of such offence having
been/being committed cannot entirely be ruled out.
Reference to Section 340 of IPC would be apposite at this
stage which reads as follows:
“340. Wrongful confinement.—Whoever
wrongfully restrains any person in such a
manner as to prevent that person from
proceedings beyond certain circumscribing
limits, is said “wrongfully to confine” that
person.”
It all depends on the facts and circumstances of the case.
To such extent therefore, this Court is of the considered
view that the second application filed under Section 97 of
Cr.P.C. by the petitioner was maintainable. {Para 5}
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLREV No. 196 of 2022
Amrita Ray Vs State of Odisha and Others
CORAM:
JUSTICE SASHIKANTA MISHRA
Dated: 7th February, 2023
The petitioner is the wife of opposite party
no.3. The opposite party no.2 is the child, who, it is
claimed, was taken away forcibly by her father-opposite
party no.3 from the custody of the petitioner when she
was 2 and ½ years old. The other opposite parties are
family members of opposite party no.3. The petitioner filed
an application under Section 97 of Cr.P.C. before the Sub-
Divisional Magistrate, Jajpur vide Criminal Misc. Case No.
1305 of 2021 for issuance of search warrant. By order
dated 30.09.2021, learned S.D.M. issued a search warrant
directing the IIC of Jenapur Police Station to search the
house of the opposite parties and to produce the child
before the Court. Subsequently, by order dated
26.10.2021, learned S.D.M., held that the child is in the
custody of its father with the intervention of IIC of Ponda
Police Station, Goa and therefore, the question of illegal
confinement does not arise as he is the natural father and
legal guardian. Again, the petitioner filed an application
being Criminal Misc. Case No. 725 of 2022. By order
dated 12.04.2022, the learned S.D.M., Jajpur rejected the
application by holding that the self same dispute had
already been decided in the earlier case and therefore, the
proceeding initiated is res judicata. The above orders are
impugned in the present revision.
2. Mr. A.N. Pattanayak, learned counsel
appearing for the petitioner submits that there is no
concept of res judicata in criminal jurisprudence.
Secondly, the subsequent application was filed as it was
for a different cause of action viz., danger to the life of the
child. He further relies upon a judgment passed by this
Court in the case of Keshaba Chandra Sahoo vs. State
of Odisha and others reported in 2023(I) OLR 288 and
the decision of the Bombay High Court in the case of
Purushottam Wamanrao Thakur v. Warsha, reported
in 1992 CriLJ 1688 in support of his contention. On such
basis Mr. Pattanayak submits that learned Magistrate
should have issued notice to the opposite parties in order
to be satisfied whether keeping of the child by the father
amounts to illegal confinement or not.
3. Per contra Mr. S.K. Mishra, learned Addl.
Standing Counsel for the State has contended that the
second application filed by the petitioner-wife is barred
under Section 362 of Cr.P.C.. He further submits that it is
open to the petitioner to approach the competent court
seeking custody of the child if she so desires, but such
order cannot be passed in an application under Section 97
of Cr.P.C..
4. Undoubtedly, Section 362 of Cr.P.C. places a
bar on a criminal court to review or alter its
judgment/order after the same has been passed but then,
it must also be kept in mind that the first application was
filed in the year 2021 which was disposed of on
26.10.2021. The subsequent application was filed in the
year 2022. If the averments of the subsequent application
are read objectively, it would reveal a definite and specific
cause of action crystallized under paragraphs- 5 and 6
thereof, which are extracted below:
“5) That the petitioner came to know from a
reliable source, that her minor daughter Ahana
Ray O.P. No.4 has been wrongfully confined by
the O.P. No.1 in the house of O.P. No. 2 & 3 at
Vill- Ghanapur (Dochhaki) under Paradeep Lock
Police Station which amounts to an offence.
6) That the petitioner has reason to believe that
the life of her minor daughter (O.P. No.4) is not
safe in the hands of the O.P. No. 1, 2 and 3, and
they may eliminate her at any time.”
Thus, the alleged confinement of the child as per the first
application cannot be treated as a one-off incident so that
the order passed by learned SDM on 26.10.2021 would be
treated as a bar for invoking the provision under Section
97 of Cr.P.C. for all times to come. Such an interpretation
would militate against the very legislative intent behind
enacting the relevant provision.
5. If the Court ultimately holds that keeping of
the child in the manner alleged in the subsequent
application, in fact amounts to illegal confinement, then
the same cannot be restricted to any particular date.
Therefore, in particular, looking at the statutory intent
behind enactment of Section 97 of Cr.P.C. it can be safely
held that in the peculiar facts and circumstances of the
present case, the filing of the subsequent application
cannot be treated as barred by law. Moreover, as has been
argued by Mr. Pattanayak, there is no concept of res
judicata in criminal jurisprudence. From the facts
narrated hereinbefore, it is evident that there is dispute
between the petitioner and her husband and that their 2
and ½ years child (at the relevant time) was alleged taken
away forcibly by opposite party no.3 and the petitioner
was not allowed to meet her child. Further, the child is
said to be kept confined to a room and there is also some
danger to its life. Now, whether the allegation as above is
correct and/or whether this would amount to wrongful
confinement of the child would depend on the facts and
circumstances of the case but it would suffice to say that
if the allegations leveled by the petitioner are accepted on
their face value, the possibility of such offence having
been/being committed cannot entirely be ruled out.
Reference to Section 340 of IPC would be apposite at this
stage which reads as follows:
“340. Wrongful confinement.—Whoever
wrongfully restrains any person in such a
manner as to prevent that person from
proceedings beyond certain circumscribing
limits, is said “wrongfully to confine” that
person.”
It all depends on the facts and circumstances of the case.
To such extent therefore, this Court is of the considered
view that the second application filed under Section 97 of
Cr.P.C. by the petitioner was maintainable.
6. Another aspect needs consideration. In the
case of Keshaba Sahoo (supra), this Court after analyzing
the provision of Section 97 of Cr.P.C. and by relying upon
a decision of the Karnataka High Court in the case of Sri
Khamarulla Khan Alias Alijan and others vs. Smt.
Mujiba K. Khan (arising out of Criminal Revision No. 144
of 1979) held that when the dispute is between close
relations it would be proper for the Magistrate to hear
both sides before forming an opinion as to whether the
confinement amounts to illegal confinement or not. It is
emphasized that it is not so much a proceeding to decide
the question of custody of the child but one in which the
welfare of the child also has to be seen in view of its age
being below 5 years. Obviously, the child would not be in
a position to determine its own welfare. Learned SDM
appears to have been swayed away by his previous order
whereby he held that the question of illegal confinement
does not arise since the child is with its natural father and
legal guardian. Given the specific allegations made in the
subsequent application, it cannot straight away be said
that the child is safe and sound being with its father.
Learned SDM appears to have lost sight of the legislative
intent of Section 97 of Cr.P.C. completely. True, some kind
of arrangement regarding its custody appears to have
been made at the instance of the IIC of Ponda P.S., Goa,
but that was long time ago. What exactly is the situation
viz-a-viz the child now, is the question that should have
been considered by learned SDM instead of mechanically
referring to the said arrangement. Thus, at least a
preliminary enquiry ought to have been made by learned
SDM in the matter for recording his subjective satisfaction
as regards the veracity of the allegations relating to
confinement of the child.
7. Having regard to the above as also the nature
of allegations made by the petitioner, this Court is of the
considered view that learned S.D.M. ought to have at least
issued notice to the husband and his family members
before taking a final decision regarding the nature of
confinement of the child.
8. In such view of the matter, the revision is
allowed. The impugned order is set aside. The matter is
remitted to learned S.D.M., Jajpur to consider the petition
under Section 97 of Cr.P.C. afresh by issuing notice to the
petitioner-husband and his family members. The case
shall be finally disposed of within a period of four weeks.
It goes without saying that while disposing the case,
learned S.D.M. shall grant proper opportunity of hearing
to both sides.
……..…………………..
Sashikanta Mishra,
Judge
Orissa High Court, Cuttack,
The 7th February, 2023.
Print Page
No comments:
Post a Comment