IMPORTANT POINT
Order passed by JMFC u/s 97 of Cr. P.C. is in excess of his jurisdiction where he did not consider the fact that the child was in custody of his father.

JUDGMENT

A. Pasayat, J.- Propriety of order passed under section 97 of the Criminal Procedure Code, 1973 (in short the 'Code'), is the subject-matter of adjudication in this revision application.

2. Opposite party filed a petition styled one under section 97 of the Code praying learned Judicial Magistrate, First Class, Jajpur Road (in short the JMFC) to issue a search warrant to the Officer-in-charge, Sukinda Police Station to search the house of present petitioner, release from his custody a child confined by petitioner and produce him and to give custody to the mother, the present opposite party as she is the best custodian of the child. According to present opposite party, petitioner was her husband and a son named Laxman was born on 28.12.1987; on 7.7.1990 she was driven out of the house of petitioner who had married for second time; a case for grant of maintenance was filed, as well as a complaint case under Section 494 of the Indian Penal Code, 1860 (in short the 'IPC'); on 1.9.1990 the present petitioner forcibly took away the child to his house, and there was apprehension of danger to life of the child and the mother is the best custodian of the child. It was alleged that child was wrongfully confined and there was necessity for issue of a search warrant in terms of Section 97 of the Code. The prayer was accepted by learned JMFC, who directed the Officer-in-charge, Sukinda P.S. to recover the child and produce him before court soon after execution of search warrant. This order was passed on 3.9.1990. The matter was directed to be placed on 4.9.1990. Since order dated 3.9.1990 was not complied, it was adjourned to 7.9.1990. Matter was again adjourned to 21.9.1990, awaiting execution of warrant. On 17.9.1990, search warrant issued was returned after execution. Petitioner entered appearance on that date. Since opposite party was not present in court, her Advocate filed a petition to keep the child in the custody of head of the institution of Gobarghati Ashram School. The head of the said institution expressed his inability to take custody of child, on the ground that there was no scope for keeping such a small child. It is asserted by learned counsel for petitioner that in view of refusal by Ashram authority, the child was left uncared for in the Police Station and petitioner was called to look after him. On 19.9.1990 matter was taken up by learned JMFC, who passed an order delivering custody of the child to the mother (opposite party), with further direction that she was to have custody till the child attains majority. He also further directed that after the child attains majority, he is at liberty to go to his father (petitioner). It was also directed that if father wanted in between to see the child, he was permitted to do so.

3. According to learned counsel for petitioner, exercise of jurisdiction under Section 97 of the Code was illegal and uncalled for. Learned counsel for opposite party however, submits that there is nothing illicit in the order passed by learned JMFC to warrant any interference.

4. Provisions contained in section 97 of the Code are emergent in nature. A Magistrate is authorised to issue a search warrant if he has reason to believe or on the truth of the allegation about the wrongful confinement of a person. The Magistrate cannot issue search warrant unless confinement amounts to offence. Section 97 of the Code corresponds to Section 100 of the old Code of 1898 his section contemplates only wrongful confinement. Wrongful confinement is defined in Sections 339 and 340, I.P.C. Use of the expression" reason to believe" makes the legislative intent very clear that unless Magistrate has reason to believe that a person is confined in such circumstances that confinement itself amounts to an offence, issue of a search warrant under this section is without jurisdiction. Expression "reason to believe" implies belief arrived at judicially after application of judicial mind on consideration of available materi