A Magistrate cannot issue a search warrant under section 97 of the CrPC for the production of a child from the custody of the father and directing that the child shall be in the custody of the mother because the custody of the child with the father does not amount to wrongful confinement and thereby no offence is committed attracting the provision of section 97 of the CrPC.

Dipak Misra, J.

1. Invoking the revisional jurisdiction of this Court the wife-petitioner has assailed the order dated 4-3-1997 passed in Criminal Revision No. 227/1996 by the First Additional Sessions Judge, Raigarh whereby he has reversed the order dated 5-11-1996 passed in Criminal Case No. 53/1996 by the Chief Judicial Magistrate, Raigarh wherein he had entertained the prayer of the petitioner and directed that the custody of the minor daughter should be given to her till a decision is given by the Court of competent jurisdiction regarding such custody. The facts as have been depicted in the petition are that the marriage of the petitioner and the non-applicant No. 1 was solemnised at Raigarh on 27-1-1993 as per Hindu rites and in their Wedlock a daughter was born on 26-11-1993. She was named Payal. The brother of the petitioner, Kishore Kumar was married to the sister of non-applicant No. 1. After the marriage the non-applicant No. 1 and his family members treated the applicant with cruelty and on 27-5-1997 the applicant was sent to her parental house. The non-applicant retained ornaments which belonged to the applicant. It is also alleged that a sum of Rs. 40,000/- was demanded from her parents for purchase of a coloured Television and construction of the house. Under compelling circumstances the applicant filed an application under section 125 of the Code of Criminal Procedure (in short 'the Code') before the Chief Judicial Magistrate, Raigarh which was registered as MCRC No. 26/1994. The said Court on consideration of material on record awarded a sum of Rs. 500/- to the applicant towards her monthly maintenance. To avoid the maintenance the husband entered into a compromise on the basis of which the applicant went to her husband's house to stay with him. She was again subjected to cruelty. She made a request to her sister-in-law that she and her daughter, Payal should be allowed to be sent to her parental home but her sister-in-law and husband forcibly separated the daughter from her and sent her alone to Raigarh where on 13-8-1996 she reported the matter to the police. The S.H.O. of Police Station, Shakti was requested to give her the custody of the minor child but no action was taken by the said authority. As the petitioner was apprehensive about the safety of the minor child she filed an application for issuance of search-warrant and handing over the custody of the daughter to her. The application was described to be one under section 98 of the Code. On the basis of the aforesaid application the Chief Judicial Magistrate, Raigarh issued a search warrant and accordingly the non-applicant No. 1 along with the minor daughter was produced by the police in the Court of the Chief Judicial Magistrate. Learned Chief Judicial Magistrate by order dated 5-11-1996 allowed the application and directed the minor child to be given in custody to the applicant, till a decision was given by the Court of a competent jurisdiction. The propriety of the aforesaid order was called in question by the husband/non-applicant No. 1 in the Court of Session in a criminal revision. It was contended before the revisional Court that the application of the applicant preferred before the Sub-Divisional Magistrate, Shakti was earlier rejected as not maintainable but the said fact was not mentioned in the application and suppressing the relevant fact a prayer was made for issuance of a search warrant which was allowed. It was also contended that the Court below could not have passed the order as the whole proceeding was without jurisdiction. On consideration of the submission made on behalf of the non-applicant the revisional Court set aside the order passed by the learned Chief Judicial Magistrate and directed that the minor child should be returned to the husband. While giving such direction the First Additional Sessions Judge, Raigarh who disposed of the revision also observed that it was open to the present petitioner to file a proper applica