@ Author
Observation: This post should have been posted in Criminal Law Forum however this pointer besides the point there is a old saying 'there are so many sips between cup and lip or something like that..." So mere referring to SHO (IO) for status report on your complaint application U/s 156 (3) CrPC does not mean MM has taken cognigance and even if so she is entitled for AB as well as Bail which is matter of few paper works and in minutes she can show her presence before MM Court after seeking Bail and ask for Complaint copy of yours !
"The mother is likely to be arrested and remanded." - actual ground happening in Family Law matters are two faces of two coins not one coin be warned least any disappointment follows later !
Reasoning: Try to first understand the process flow of S. 156 (3) CrPC which are;
1. Any judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. Now he Orders for investigation via Jurisdiction SHO and an IO under the SHO does the investigation. be clear on this process flow under complaint.
2. Now, once the Magistrate does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. From your brief what I see that some Complaint filed under S. 156 (3) CrPC that is all !
3. Well for the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer-in- charge of the police station as indicated in Section 154 of the Code.
4. However, even if a magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered is views of various Citations from Hon'ble SC on asked Section of the Code and now it is the duty of the officer-in-charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.
I see lots of above elements missing from your provided briefs hence I stand by my opening observation as reply to your briefs before me.
Before parting with the above gyan I must add that it is better to file as a co - Petitioner (means you and your wife along with your son) an Application U/s 25, 10, 17 and 19 of GWA R/w S. 151 CPC for Guardianship and Custody of the minor Child if you apprehend that SHE WILL BE BEHIND LOCKUP tomorrow !
BTW, a Magistrate Court has no power to give child on custody it is a Civil Court which grants such relief and that is the reason I suggest to do some early paper work by filing above kinda Guardianship and Custody Petition before Jurisdiction Family Court / Civil Court.
All the best if any.
