Calcutta High Court · 2021

recovering the minor girl. It was contended that the daughter of the present Petitioner met with unnatural death in her matrimonial home for which the present Petitioner initiated criminal prosecution being Kumargram Police Station Case No.173 of 2021 22/08/2021 sections 498A/304/34 of the Indian Penal Code. The minor daughter was in the custody of the Petitioner, being her maternal grandfather. The Opposite Party No.2, being the father of the minor girl filed an application before the Sub-Divisional Magistrate, Alipurduar, praying for issue of warrant under section 97 of the Code of Criminal Procedure, 1973. The Sub-Divisional Magistrate issued search warrant whereby the custody of the minor daughter was handed over to the Opposite Party No.2 being the father of the minor daughter. Being aggrieved and dissatisfied, the present Petitioner preferred an application of criminal revision under section 397/399 of the Code of Criminal Procedure, 1973 before the Additional Sessions Judge, Alipurduar.

The said application was dismissed by the additional Sessions Judge on the ground that an interlocutory order cannot be subject to a revision application. Since an order passed under section 97 of the Code of Criminal Procedure is interlocutory in nature, according to the Revisional Court, the revisional application was rejected in terms of the impugned order. Hence, the instant application is filed. Section 97 of the Code of Criminal provides:

97. Search 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 before a Magistrate, who shall make such order as in the circumstances of the case seems proper.

The present Petitioner the maternal grandfather of the minor girl whereas the Opposite Party No.2 is the father as well as the natural guardian of the minor.

In that case, the Opposite Party No.2 is the legal guardian and is entitled to the custody of the minor in exercise of section 97 of the Code of Criminal Procedure, 1973. But this would not prevent the present Petitioner to file appropriate application in a court of competent jurisdiction praying for custody and guardianship of the minor girl. The order passed by the Sub-Divisional Magistrate issuing warrant under section 97 of the Code of Criminal Procedure, demands no interference. On the other hand, the Additional Sessions Judge, while passing impugned judgment applied the correct principles of law ruling out any need of any interference. In nutshell, the instant application is not allowed and stands dismissed on merit. The instant case is disposed of accordingly. (Sugato Majumdar, J.)