A trial court's issuance of a notice to a person to appear before it along with a minor child in proceedings under Section 97 of the CrPC, where the child's custody and/or confinement is a question yet to be decided, is unsustainable and unjust.

( 1 ) BY this petition under section 482 of the Code of Criminal Procedure, the petitioner seeks to invoke the inhereat powers of this Court to quash the proceedings initiated by her husband-respondent No. 1, under section 97 of Criminal Procedure Code before Judicial Magistrate, First Class, 5th Court, Akola. Brief facts leading to the present petition may be stated as follows :-

"the respondent No. 1-Shaligram, was married to the petitioner in 1970 at Pune. A child by name Sunil was born to the couple in February 1971 at Pune. Thereafter, the petitioner was carrying for the second time, but during the period of pregnancy, the relations between the husband and wife had strained and it is alleged by the present petitioner that she was driven out by the husband in September 1972. She was thereafter residing with her parents at Bombay, when the second child-Anil was born on 1-6-1973. According to the petitioner, she has no source of income and she and her new born child Anil were solely dependent for their maintenance and livelihood upon her parents. It is further the submission of the petitioner wife that because of the financial stringency and finding that she is unable to bring up the child in a proper atmosphere and to impart good education to him, she handed over the custody of the child to a couple by surname Doraswamy of Bombay in the nature of adoption. This was effected in April 1974, It is further averred by the petitioner that her second child Anil continues to be with the couple Doraswamy since April 1974 up-to-date. It is further averred that the child is being looked-after by them and is being educated ina convent school and the child is in a healthy state and has attained the age of II years. "

( 2 ) THE petitioner has further placed some facts on record which go to show that because of the intervention of common friends and relatives, a re-conciliation between the husband and wife was attempted and accordingly in the year 1981, the petitioner wife went to reside with her husband-respondent no. 1. She, however, did not go with her second child-Anil who continues to be at Bombay with Doraswamy. This attempt of reconciliation, however, proved futile according to the petitioner and about a couple of months thereafter, she was again required to return to Bombay.

( 3 ) THE material portion in the petition with which we are concerned is as follows:

"in May 1984, the respondent husband had come to Bombay and wanted to meet his second child, Anil. The husband lodged a report at Nagpada Police Station that he is not being allowed to meet his child, and consequently the Nagpada Police Station produced the petitioner wife and the child Anil at the police station and the respondent husband having noted the same returned back to Akola. "

( 4 ) FEW days thereafter on 20th May 1984, the respondent husband, filed a petition under section 97 of the Code of Criminal Procedure in the Court of Chief Judicial Magistrate, Akola, seeking issuance of a Search Warrant for production of the child Anil on the ground that the said child is in wrongful confinement and is not with the legal guardian mother and that its life is in danger.

( 5 ) JUDICIAL Magistrate, First Class, 5th Court Akola, issued a show cause notice to the wife-petitioner (non-applicant in the said proceedings) calling upon her to appear before the Court on 31st May 1984 along with her son-Anil to reply to the said proceedings.

( 6 ) ACCORDING to the petitioner, she was served with the notice on 29th May, 1984; But because of riotous situation then prevailing at Bombay, she was unable to proceed to Akola to attend the same on 31-5-1984. Thereafter a Warrant of Arrest for the petitioner was issued and the Nagpada police station were about to execute the said Warrant of Arrest upon the petitioner. It is submitted by the petitioner that initially she moved the High Court at Bombay but was advised to move the Nagpur Court, as the Warrant was issued from Akola Court. It