The central legal point established in the judgment is that the invocation of Section 97 of the Code of Criminal Procedure for securing the custody of a child from the other parent in a custody dispute is not proper or legal.

1. Rule. By consent, rule made returnable forthwith. By consent, heard finally.

2. The applicant is the husband of respondent no.1. After marriage they had been residing at their matrimonial home at Palus. Later, matrimonial disputes between the petitioner and respondent no.1 arose, and that, the respondent no.1 has been staying separately from the petitioner i.e. at her parent's house, is not in dispute, though since when, and what circumstances, they came to be separated is in dispute. Respondent no.1, some time in October 2011, made an application before JMFC-Malshiras, purporting to be one under Section 97 of the Code of Criminal Procedure, alleging that the applicant (respondent before the Magistrate) had taken away Rahulson of the applicant and respondent no.1, from the house of respondent no.1's parents to his house at Palus. It was also alleged by respondent no.1 in the said application that the applicant was contacted by her on telephone repeatedly, but the applicant was saying that respondent no.1 should bring some amount from her parents and that it is only thereafter that the said child Rahul would be given to respondent no.1.

3. It appears that instead of issuing a search warrant, the learned Magistrate issued a notice to the respondent before him i.e. present petitioner (hereinafter referred to as “the father”). The child Rahul was also caused to be produced before the Magistrate. The learned Magistrate after hearing the parties came to the conclusion that the provisions of Section 97 of the Code of Criminal Procedure were not applicable to the case. The Magistrate was of the view that for the applicability of the provisions of Section 97 of the Code of Criminal Procedure, the 'confinement' must be such, as would amount to an offence. The learned Magistrate, therefore, rejected the application.

4. Respondent no.1, herein (hereinafter referred to as “the mother”) moved the Court of Sessions in Revision challenging the order passed by the Magistrate. The learned Additional Sessions Judge, who heard the revision, allowed the same and set aside the order passed by the Magistrate. The learned Additional Sessions Judge directed a search warrant to be issued for the search of the said child Rahul in the house of the father or at any other place where the child would be found, and directed the production of the child before JMFC-Malshiras, who was further directed to hand over the custody of the said child to the mother.

5. Being aggrieved by the said order passed by the Additional Sessions Judge in revision, the father has approached this Court invoking its constitutional jurisdiction.

6. I have been taken through the order passed by the learned JMFC-Malshiras as well as the order passed by the Additional Sessions Judge, Malshiras.

7. The contention of the learned counsel for the farther is that, there was no occasion to exercise the powers under Section 97 of the Code of Criminal Procedure. According to him, the conditions requisite for exercise of such powers were absent in this case, as the alleged confinement of the said child, if any, by the father, did not amount to any offence. He also placed reliance on two decisions delivered by this Court, in which a similar view was taken. He also submitted that on facts also, there was no case for the mother and that, the very basis of the allegations levelled by her: namely, that the child Rahul was forcibly taken away by the father, was not believable.

8. Counsel for the mother, on the other hand, submitted that since the child was forcibly taken away from the custody of the mother, the taking away of the child would amount to an offence. He also submitted that according to the mother, the father had been demanding money from her for the purpose of handing over the custody of the said child to her. The learned counsel for the mother, has also relied upon a decision of this Court, in which the issuance of search warrant for the purpose of handing over the