The court held that a search warrant for the recovery of a child from the custody of his own father cannot be issued under Section 97 of the CrPC unless there is a reason to believe that the child is confined in such circumstances that the confinement amounts to an offense.

At the instance of the opposite party/mother an application under Section 97 of the Code of Criminal Procedure was moved before the Court of Learned Executive Magistrate, Bidhannagar with a prayer for issuance of search warrant for recovery of her minor son aged about 4 years allegedly wrongfully confined by the present petitioner.

2. The Learned Magistrate allowed such prayer and made the following order;

“Upon perusal of the petitioner, here the submissions of the learned advocate of the petitioner, considering the age of the minor child it is hereby ordered that,

(i) Search warrant be issued under Section 97 Cr.P.C. directing the I/C, Lake Town P.S. to recover the minor child and produce before this Court on 26th October, 2009 positively.

(ii) I/C, Lake Town P. S. is also directed to inform the O.P. to be present before this Court on the date fixed along with the child.

(iii) The petitioner is also directed to be present on the same day positively.”

3. Aggrieved by the order of issuance of search warrant under Section 97 of the Code, the petitioner who happened to be the own father of the child moved the instant criminal revision.

4. Heard Mr. Bikash Ranjan Bhattacharjee, the Learned Senior Advocate appeared with Mr. Joymalya Bagchi on behalf of the petitioner as well as Mr. Debasish Roy, learned advocate for the opposite party no. 2. Although notice was served upon the State, none appeared on its behalf. Perused the impugned order as well as other materials on record.

It may be noted, both the parties, viz., the father and the mother of the minor child for recovery of whom the impugned search warrant was issued were present before this Court and they were heard personally at length.

5. The impugned order has been passed by the Learned Magistrate in exercise of his power under Section 97 of the Code of Criminal Procedure. The provisions of Section 97 of the Code is quoted below;

“Search for persons wrongfully confined.

97. 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.”

6. Now, from a plain reading of the aforesaid provisions it is abundantly clear to assume jurisdiction under Section 97 of the Code and to make any order for issuance of search warrant thereunder, the Learned Magistrate first have to record his reasons to believe from the material produced before him that the person allegedly confined, is confined in such a circumstance that such confinement amounts to an offence. Therefore, it is sine quo non that any order passed under Section 97 of the Code must be preceded by recording of reason to believe and finding that the alleged confinement of any person in the particular facts and circumstances of the case amounts to a wrongful confinement. However, from perusal of the impugned order I find that the Learned Magistrate made the order of issuance of search warrant by merely recording of submissions of the learned advocate of the opposite party no. 2 and on a finding that child was aged about 4 years, but without recording any finding that in the circumstances in which the child has been living in the custody of his own father amounts to an offence. It further appears that the order impugned was passed quite mechanically. In one hand the Learned Magistrate directed the police to recover the minor child and to produce him before the Court, on the other hand police was directed to inform the present petitioner to be present in Court on the date fixed along with the child. Thus, the order so passed cannot be said to have passed in ac