A Magistrate must ensure subjective satisfaction regarding wrongful confinement before issuing a search warrant and must provide opportunity for the involved parties to be heard.

ORDER :

1. This matter is taken up through virtual mode.

2. The petitioner questions the correctness of order dated 28.02.2022 passed by learned Sub-Divisional Magistrate, Kuchinda in CMC No. 70 of 2022 whereby a search warrant was directed to be issued to produce before him a child said to be kept under wrongful confinement of the petitioner.

3. The brief facts of the case are that the petitioner is the father of one Diptimayee Sahoo, who had married the opposite party no.2 on 03.03.2019. A female child namely, Dolakanti Sahu was born to the couple on 15.03.2021. Subsequently, the wife of opposite party no.2 suffered from Corona virus and died during treatment on 22.07.2021. The dead body was cremated at Satichoura cremation ground, Cuttack following the COVID guidelines issued by the Government. At that time, when the opposite party no.2 was holding his daughter, the petitioner is alleged to have forcibly snatched her away and thereafter kept her under his custody in his house at village Jitadimiria in the district of Angul. It is further alleged that being the father and natural guardian of the child, the opposite party no.2 went to the house of the petitioner and requested him to give the custody of the child, but he did not respond and on the contrary abused the opposite party no.2 in obscene language and also alleged that he had intentionally killed his daughter. On such allegations, the opposite party no.2 filed an application under Section 97 of Cr.P.C. before the learned court below seeking issuance of a search warrant and for production of the child. Learned S.D.M., after recording the allegations made in the petition by the opposite party no.2 issued a search warrant to the IIC Khamar police station to search the minor child Dolakanti in the house of the petitioner and to produce her before him. The said order is impugned in the present revision.

4. Heard Mr. S. Dwibedi, learned counsel for the petitioner, Mr. Pabitra Kumar Nayak, learned counsel appearing for the opposite party no.2 and Mr. P. Tripathy, learned Additional Standing Counsel for the State.

5. Mr. Dwibedi, while submitting that the allegations made by the opposite party no.2 are false and baseless contends that the issuance of search warrant was completely contrary to the provision of law inasmuch as no notice was issued to the petitioner to have his say in the manner. He further submits that the statute requires the Magistrate to record his subjective satisfaction that the alleged confinement amounts to an offence before issuing a search warrant. In the instant case, learned Magistrate has straightway acted upon the petition filed by the opposite party no.2 without being so satisfied. As regards allegation of confinement of the child, Mr. Dwibedi has relied upon a decision of the Karnataka High Court in the case of Sri Khamarulla Khan Alias Alijan and others vs. Smt. Mujiba K. Khan (Arising out of Criminal Revision No. 144 of 1979) in support of his contention that notice is a must before issuing a search warrant, particularly when the parties are close relations.

6. Mr. P. Tripathy, learned Additional Standing Counsel submits that the power under Section 97 of Cr.P.C is not required to be exercised after issuing notice to the other side. According to Mr. Tripathy, this is an emergent provision to be invoked immediately upon receipt of the complaint regarding wrongful confinement and therefore, it would not be practicable to issue notice to the alleged offender.

7. Mr. P.K. Nayak, learned counsel appearing for opposite party no.2 also submits that no notice is required to be sent to the other side and that the Magi