1. The reversing of the order of the learned I Additional Judicial First Class Magistrate, Nizamabad in Crl.M.P.No.2372 of 2009, dated 22.12.2009, through orders in Crl. Revision Petition No.5 of 2010, dated 20.07.2010 by the II Additional Sessions Judge [Fast Tract Court (FTC)], Nizamabad is assailed by the respondent before the learned Additional Judicial First Class Magistrate.

2. The petitioner was the respondent in Crl.M.P.No.2372 of 2009 and Crl. Revision Petition No.5 of 2010. His wife is the petitioner in Crl.M.P.No.2372 of 2009 as well as in the Crl. Revision Petition No.5 of 2010.

3. The wife and the husband are estranged spouses. They have two sons in Syyed Arsalan and Syyed Amaan. The children were staying with their mother. It is the case of the wife that on 14.06.2009, the husband allegedly visited the house of the parents of the wife and took away the elder child-Arsalan, who was playing in front of the house. Alleging that the same was tantamount to illegal confinement, the wife filed a petition under Section 97 of the Criminal Procedure Code (Cr.P.C., for short) to issue a search warrant for the production of the minor Syyed Arsalan before the Court. The learned I Additional Judicial First Class Magistrate, Nizamabad held that the Court was not entitled to go into the disputed question as to who among the wife and the husband is entitled to the custody of the minor child. So holding, the learned I Additional Judicial First Class Magistrate, Nizamabad dismissed Crl.M.P.No.2372 of 2009. The wife assailed the same before the II Additional Sessions Judge (FTC), Nizamabad, through Crl. Revision Petition No.5 of 2010. The learned Sessions Judge set aside the finding of the learned I Additional Judicial First Class Magistrate, Nizamabad and directed the husband to hand over the custody of the minor child to the wife within one month from the date of the order. Questioning the same, the husband preferred the present revision.

4. Section 97 Cr.P.C. reads:

“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.”

5. The learned Sessions Judge relied upon series of decisions and considered that Section 97 Cr.P.C. is analogous to the Writ of Habeas Corpus. He considered that expediency required to pass orders regarding the custody of the child. Accordingly, he directed that the child would be delivered to the mother.

6. In Duryodhan Mahanta v. Sarsawati Mahanta (1992 Crl.L.J. 2231), a Magistrate issued search warrant for the production of a child who was below five years. The petition was laid by the mother of the child. The child was recovered from the custody of the father of the child. The learned Magistrate went further and passed orders directing the custody of the child with the mother till the child attained majority. The Orissa High Court observed that the Magistrate had no jurisdiction to pass such an order u/s.97 Cr.P.C.

7. In Rameshv. Laxmi Bai (1998 SCC (Crl.) 999), it was observed that the very Section 97 Cr.P.C. is not attracted for issuing search warrant for the recovery of the child when the child is lived with its father. When admittedly the minor child has been in the custody of the husband herein perhaps the wife cannot force the delivery of the child to her.

8. The additional factor in this case is that the minor child who is the subject matter already crossed eight years of age. Sri M. Subba Reddy, learned counsel for the husband pointed out that under Mohammad Law, the mother would be