ARUNABHA BARUA, J.

( 1 ) THIS revisional application under sections 401 and 482 of the Code of Criminal Procedure arises out of an order passed by the learned Sub-Divisional Magistrate, Basirhat, on the 20th July, 1994 whereby the learned Magistrate issued search warrant for producing the minor children in Court in Case No. M. P. 762a of 1992.

( 2 ) THE matter is short and simple. The petitioner in the instant revision is the husband and the opposite party is his wife. Way back on 20. 10. 91, their otherwise peaceful marriage showed signs of cracks when pursuant to a quarrel between husband and wife, the wife, that is, Sakila Bibi, the opposite party here, left her husband's house, that is the house of the petitioner here, along with her brother, in the absence of husband. Allegedly, she also took away at that time all the ornaments given to her by her husband together with Rs. 1,000/- in cash and her garments. Her two minor children were left at her husband's house. According to the petitioner-husband in spite of repeated requests including registered letters by the husband, the wife did not come back to her husband's house. Next year, that is in 1992, the said wife filed a petition under section 97 Cr. PC before the Sub-Divisional Magistrate, Basirhat alleging ill-treatment by the said husband and also alleging second marriage of the husband. In that petition she further alleged that on 12. 4. 92 she was driven away by her husband and his family members. She prayed for a search warrant under section 97 Cr. PC to rescue the two minor children from the custody of her husband. The learned Magistrate issued show cause notice upon the husband and the husband in his show cause notice said that the allegations by the wife were all false, that the wife had no means to provide the two minor children, that it was he that is the husband or the father of the children, who was looking after the welfare of the two children and he had committed no offence of wrongful confinement of his children and that provisions of section 97 Cr. PC were not at all applicable. The case was fixed for hearing of arguments on 20. 7. 94 but the petitioner-husband failed to appear on that date because of his illness and though an adjournment was prayed for, the Magistrate was pleased to reject it and heard the argument on behalf of the wife, exparte and passed the impugned order dt. 20. 7. 94 whereby he issued the search warrant in question for the production of the minor children from his custody in Court. Being aggrieved at and dissatisfied with the said order of the learned Magistrate, the husband filed this revisional application before this Court.

( 3 ) I have heard at length the arguments placed on behalf of both sides by the learned advocates.

( 4 ) ACCORDING to the leanred advocate for the petitioner-husband the allegations of the wife in moving the application for search warrant in question under section 97 Cr. PC are false. It is further submitted that since the father was having the minor children in his custody at his house there was no question of any "wrongful confinement" and section 97 Cr. PC is plainly not applicable because his action by no means constituted an "offence". It is further submitted by the learned advocate for the husband that the paramount consideration is the welfare of the children and since the father was also a guardian of the children, he was competent to look after the children's welfare and the custody of the children with him being the father cannot be disturbed legally by a search warrant to transfer the custody in favour of the wife. It is further submitted that the matter relating to custody of children in a dispute over the same must be left to be decided by a Civil Court having jurisdiction in a properly constituted guardianship and/or custody proceeding and not by way of any criminal proceeding. Hence, according to the learned advocate for the petitioner the instant revisional application by the husband should

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