Sections 97 and 98 of the CrPC cannot be used by one parent, even if he is the legal guardian, to obtain the custody of his minor children from the other parent. The proper remedy in such a case is to proceed under the Guardian and Wards Act, 1890.

P.N. Harkauli, J.

1. THIS application for revision is directed against an order passed by the learned Judicial Magistrate I, Bulandshahr directing that Km. Rakesh and Km. Munni (applicants 3 and 4 in this revision) shall be restored to the custody of their father Hardas Singh, opposite party No. 1.

2. THE facts giving rise to this application so far as they are relevant for the purpose of this revision are as follows.

Hardas Singh, opposite party No. 1, moved an application under Sections 97 and 98 CrPC. He alleged that Smt. Premwati (applicant No. 2 in this revision) was his wife and these two girls were born to Smt. Premwati from him. In the year 1970 Rohtash (applicant No. 1 in this revision) enticed away Smt. Premwati and she had been living with him since then. It was further alleged that Rohtash had also kidnapped his children including these two girls. So Hardas Singh prosecuted Rohtash under Sections 498 and 363 IPC. In that case Rohtash was convicted by the learned Magistrate and his appeal was dismissed by the learned Sessions Judge in 1976. It was further alleged that neither Rohtash nor Smt. Premwati had any affection for these two girls and that they wanted to earn money by disposing of these two girls in marriage for money or by making them lead an immoral life. Indeed, according to Hardas Singh, Rohtash had already started negotiating the sale of the girls. Accordingly, he prayed that police may be directed to produce these girls before the learned Magistrate and upon their production Km. Rakesh who was a major may be set at liberty and Km. Munni who was a minor may be given in his custody.

3. ON this application the learned Magistrate ordered warrants to issue for the production of the girls before him.

4. WHEN these two girls were produced before the learned Magistrate it appeared to him that Km. Rakesh also was a minor and not a major as alleged by Hardas Singh. Accordingly, he got Km. Rakesh medically examined and the medical report showed that she was a minor.

When the girls were produced before the learned Magistrate some objections were filed on behalf of the applicants 1 to 4 in which it was disputed that Hardas Singh was the father of these girls and it was contended that he was not entitled to obtain custody of the girls.

5. LEARNED Magistrate after hearing both sides passed the impugned order directing that the two girls may be given in the custody of Hardas Singh. This is a short order and it will be useful to reporduce the relevant part thereof in extenso here. It runs as follows :-

"Kurnari Rakesh aur Munni awayask hain. Dono ke legal guardian pita hone ke nate Hari Das hi hain. Mu. No. 384 san 74 Hardas prati Rohtash Ta. Fa. 19-4-76 me concurrent finding ho chuki hai ki Abhiyukta Rohtash ne wadi Hardas ki patni aur Awayask Bachhon ki lawful guardianship se Bhagaya. Atah Minors ko Man ke pas athwa Rohtash ke Sarakshan me chhodna upyukta ne hoga. Aisi dasha me adesh diya jata hai ki Kumari Rakesh wa Kumari Munni ko unke pita Hardas ke Sarakshan me dediya jaye."

6. I have heard learned counsel for the parties and 1 am of the opinion that this order of the learned Magistrate cannot be sustained. As already stated Hardas Singh moved an application under Sections 97 and 98 CrPC. Section 97 would apply only when a person is confined under such circumstances that the confinement amounts to an offence and Sec. 98 can come into play when a female child under the age of 18 years is abducted or unlawfully detained for any unlawful purpose. Now a perusal of the order of the learned Magistrate which has been quoted above will show that he has not recorded any finding to the effect that the girls were being confined in such circumstances that their confinement amounted to an offence or that they ware being unlawfully detained for any unlawful purpose and that he has directed the delivery of the two girls to the custody of Hardas Singh not on either of these two grounds but simply on the ground that in view