1. By way of present Criminal Revision Application, the applicant has prayed to quash and set aside the judgment and order dated 17.06.2014 passed by the learned 8th (Ad-hoc) Additional Sessions Judge, Junagadh in Criminal Revision Application No.40 of 2014.

2. Heard Mr. Viral K. Shah, learned advocate for the applicant, Mr. Dipal R. Ravaiya, learned advocate for the respondent No.2, and Ms. Jirga Jhaveri, learned APP for the respondent No.1 – State.

3. While admitting this matter on 01.07.2014, Interim relief in terms of Para 8(C) of the main application was granted whereby, implementation, operation and execution of the impugned judgment and order dated 17.06.2014 passed in Criminal Revision Application No. 40 of 2014 by the learned 8th (Ad-hoc) Additional Sessions Judge, Junagadh was stayed. By such impugned judgment and order, the Sessions Court has directed the present applicant to handover the custody of his minor son Jeky, aged two and half years to respondent No.2 herein by setting aside the order dated 19.05.2014 passed by the Chief Judicial Magistrate, Junagadh in Criminal Misc. Application No.213 of 2014. Such proceedings was arising from the said Criminal Misc. Application No.213 of 2014 preferred by the present respondent No.2 under section 97 of the Criminal Procedure Code requesting the Court to issue search warrant against her minor son namely Jeky. The Sessions Court has observed that if the applicant herein fails to handover the custody of the minor son as aforesaid, then the trial Court is at liberty to initiate further action against the applicant herein. Therefore, the basic issue in this litigation is with reference to the custody of minor Jeky, aged about two and half years whose father is present applicant and present respondent No.2 is his mother.

4. Pursuant to such interim order as aforesaid, staying handing over of the custody of the minor from the applicant to the respondent No.2, respondent No.2 has preferred Criminal Misc. Application No.11595 of 2014 for vacating interim relief. Therefore, to avoid further complication and more particularly considering the fact that the matter is pertaining to the custody of minor boy aged two and half years only, both the learned advocates for respective parties have agreed to decide the main Criminal Revision Application.

5. The sum and substance of the Criminal Revision Application is to the effect that the applicant – father is a statutory guardian of the minor son and when custody of the minor was with the father, nobody can take away the custody of the minor from him except without following the provisions of law which relates to the custody of minor i.e. Hindu Minority and Guardianship Act and Guardian and Wards Act. Thereby, it is specifically contended that there cannot be a search warrant and direction to handover the custody of minor to anybody else from the legal custody of the father, more particularly under section 97 of the Criminal Procedure Code where the Court does not have the powers to issue search warrant to take away the custody of minor from his legal guardian. For the purpose, reference to section 97 of the Criminal Procedure Code is material which reads as under :

97. Search for persons wrongfully confined.-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 la 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. The bare reading of above provisions, makes it clear that the basic requirement to exercise jurisdiction under section 97 of the Criminal Procedure Code is presence of reason to believe that any person is conf