Through the medium of this petition inherent jurisdiction of the Court vested under S. 561-A, Cr.P.C. has been invoked to quash order dated 22-10-99 passed by the Judicial (Forest) Magistrate, Srinagar whereby he directed the SHO of the concerned Police Station to free the female child, aged seven months named Bisma from the wrongful confinement of her father namely, Nazir Ahmad Bhat son of Mohammad Rafiq Bhat resident of Sarmarg Teh. Handwara and produce her in the Court on 27-10-1999. Respondent namely, Mst. Jawahara is the wife of the petitioner and she had made application under S. 100, Cr.P.C. before the said Magistrate alleging therein that on account of strained material relations, the petitioner herein forcibly took the child from her custody. The child is a sucking baby who is denied the breast feeding and in this manner her life is being endangered. The Magistrate had recorded the statement of the respondent on oath who had stated that petitioner has kept a mistress and leads licentious life. He even consumes liquor and after robbing the respondent of her jwellery forcibly took away the child from her lap. All this happened while living in rented accommodation in the city of Srinagar. He has kept the child in his parental house where her life is in danger as she is not getting mothers milk and care. The Magistrate after his satisfaction believed that the child was confined under such circumstances which make the confinement an offence and accordingly issued the search warrant as stated above.

2. The petitioner has challenged the order of the Magistrate on the ground that the child is with her father who is the natural guardian. That such custody cannot be said as wrongful confinement. The Magistrate has abused the process of law by depriving the natural guardian to keep the child with him.

3. Heard the arguments.

4. The learned counsel appearing for the petitioner has contended that under S. 100, Cr.P.C. warrant cannot be issued unless the confinement of the person amounts to wrongful confinement as defined under Ss. 399 and 340, RPC. The power to issue search warrant is confined only to this limited purpose and Magistrate is not required to give a finding in whose custody the child should remain. The custody of the child is with her natural guardian and it is not such a confinement which amounts of an offence. The issuance of search warrant and production of child in the Court is abuse of the process of law. In order to buttress his contention, the learned counsel has cited the case of KLJ 326. The learned counsel has also cited the case of Romesh v. Lakshmi Bai (1999 (9) SCC 266 : (1999 Cri LJ 5023). In rebuttal it is contended by the opposing counsel that the respondent is the natural guardian of the sucking child and the forcible denial of her custody is causing trauma to the respondent who is unable to give her breast feeding.

5. The controversy of the case in short is whether the confinement of the child is lawful or the confinement amounts to an offence. Admittedly, the minor child was seven months old at the time when she was taken out from the custody of the respondent who had been feeding her own milk. The child was having natural instinct to have breast feeding and its forcible denial resulted in causing physical and mental injuries to the child as well as to the mother (respondent). The child may for some time had refused to take substituted milk feed and suffered from hunger or malfunctioning motherly love, affection and care cannot be ruled out. Under these circumstances the confinement can amount to the commission of offences falling under Ss. 323, 317, RPC etc. S. 100, Cr.P.C. is attracted where the conferment amounts to an offence. It does not contemplate the commission of an offence of wrongful confinement as defined under S. 340, RPC. It is advantageous to reproduce S. 100, Cr.P.C. and S. 349, RPC.

Section 100, Cr.P.C.

"Search for persons wrongfully confined. It any Magistrate of the first class or

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