Jurisdiction under S.97 of Cr. P.C. for custody matters requires wrongful confinement, which does not apply to parental custody.

1. The petitioner, mother of child Anmol Jaiswal, is before this Court assailing the order passed by the Sub-Divisional Magistrate, Ambikapur handing over custody of the child to respondent No. 5 in purported exercise of powers under S.97 of the Cr. P.C.

2. The petitioner was married with Ashok (since deceased) on 30-6-2007. Son Anmol, presently aged less than 7 years, was born from the wedlock on 14-4-2008. Ashok died at Kedarpur, Ambikapur on 29-10-2011. The petitioner, a young widow aged about 25 years, decided to remarry with Sanjay Choudhary. Respondent Nos. 5 to 7 moved an application before the Sub-Divisional Magistrate, Ambikapur under S.97 of the Cr. P.C. seeking search warrant, releasing boy Anmol from the captivity of his mother i.e. the petitioner and handing over his custody to them. In course of enquiry on the said application, the Magistrate found that the petitioner— s husband has not legally divorced from his previous wife and has two children from his first marriage and on this basis, he concluded that it will be for the benefit of the child if he remains in the custody of his grandmother and uncle, the respondent Nos. 5 and 6 respectively.

3. Learned counsel for the petitioner would submit that the custody of minor by parents can never be treated as wrongful confinement, therefore, at the very inception, the Magistrate had no jurisdiction to issue search warrant and thereafter handover custody of boy to a person who is not the natural guardian in terms of S.5 of the Hindu Adoptions and Maintenance Act .

4. Per contra, learned counsel for respondent Nos. 5 to 7 would submit that in proceeding of this nature, the paramount consideration would be the welfare of the child, therefore, the Magistrate having given primacy to such aspect of the matter, the impugned order is in accordance with law and the same may not be interfered with.

5. S.97 of the Cr. P.C. is reproduced hereunder for ready reference :—
'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 a 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. A reading of the above provision would manifest that jurisdiction of the Magistrate is attracted only when he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. Since parents— possession of the child cannot, under ordinary circum - stnces, amount to an offence or wrongful confinement, jurisdiction under S.97 Cr.P.C. was not available to the Magistrate for exercising powers against the child. The Magistrate having summoned the minor has gone a step ahead to withdraw his custody from the company of his mother and then to handover to grandmother and uncle.

7. In considered opinion of this Court, in the name of welfare of the child, the Magistrate cannot be permitted to usurp the jurisdiction in the manner so as to permit him to handover custody of minor to one of the contesting claimants. It is more so when decision on such issue can be raised in the manner provided under the Hindu Adoptions and Maintenance Act or the Guardian and Wards Act for which procedure has been laid down under the Family Courts Act . If the Magistrate is permitted to exercise such