An order passed under Section 97 of the Code of Criminal Procedure, 1973 regarding the custody of the persons found is an interlocutory order and, therefore, not revisable under Section 397 (2) of the Code.

1. This is an application by which the Sub-divisional Judicial Magistrate, Arrah has directed the petitioner to produce the two daughters of the complainant for being delivered to the latter in the following circumstances.

2. It appears that a complaint was filed by the opposite party to the effect that she was residing at her fathers place and that she had gone to Arrah and during her absence her two daughters, one aged about 13 years and the other about 7 years, had been kidnapped by the petitioner, who happens to be the fathers father of the aforesaid two girls. The complaint aforesaid was lodged against the petitioner and his two sons, in other words the two uncles of the girls aforesaid. During the pendency of the proceeding the complainant made a request for issue of a search warrant. The petitioner, however, produced the two girls in court of the Sub-divisional Judicial Magistrate, who took down the statement of the elder girl and the latter refused to go and live with her mother and expressed her willingness to live with the petitioner. As a result, by his order dated 30th of March, 1976 the Magistrate directed the girl to remain in the custody of the petitioner on his executing a bond. Subsequently the complainant filed a petition for the custody of the girls on the ground that she was their natural guardian. The elder girl was examined again and the parties were heard. As a result, the Magistrate passed the impugned order.

3. Counsel for the petitioner has urged that the learned Magistrate has erred in allowing the custody, because the elder girl had clearly stated that she did not wish to live with her mother but with the grandfather. Secondly, that the Magistrate has passed the aforesaid order merely because under the Hindu Minority and Guardianship Act the mother happens to be the natural guardian of the girls without considering that it was in the interest and welfare of the girls that they should have been allowed to stay with their grandfather.

4. On behalf of the opposite party however, it has been urged that the present application is not maintainable first because it is directed against an interlocutory order within the meaning of Sec.397 (2) of the Code of Criminal Procedure, 1973 and secondly because a similar application having been filed before the Sessions Judge the present application is barred by Sec.397 (3) of the Code. Next it has been urged that in view of the fact that the mother is the natural guardian the court below has rightly directed the girls to be delivered to her custody.

5. First I propose to deal with the question of maintainability. With regard to the application before the Sessions Judge it has been stated on oath in the present application that a petition in revision had been filed before him but that had been withdrawn and permission to withdraw the petition was granted by the learned Sessions Judge. It is thus, obvious that the application was not adjudicated upon. By granting permission to withdraw the application it is obvious that the court did not entertain the application. It will be relevant at this stage to read the provisions of sub-section (3) of Sec.397 which is as follows:

"If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

6. Reading the provision of Sec.397 it is obvious that the High Court and the Sessions Judge both having concurrent jurisdiction in respect of the matter of revision the legislature naturally laid down that if the matter has been decided by one of the two courts another application by the same person ought not on general principles be entertainable by the other court. There was a similar provision in the earlier Code of 1898 contained in sub-section (4) of Sec. 435. The provisions in sub-section (3) do not therefore, bring in anything new on the statute.

7. Counsel for the opposite party has how