Kishore Singh Lodha, J.
1. This application Under Section 482 Cr. PC has been filed by Chandkhan and his father Karimji against the order of the learned Judicial Magistrate No. 3, Jodhpur, dated 24-9-1984 by which he has directed the issuance of a search warrant for the production of the minor child Insaf before him.
2. The facts giving rise to this application briefly stated are that the petitioner Chandkhan is the husband of the non-petitioner Chandbai, who are both Mohammedan by caste. A son was born out of this wedlock in the year 1980. It is alleged by the wife Smt. Chandbai that on 25-5-1983 her husband Chandkhan turned her out from her house and had retained the child, namely, Insaf. Her case further is that Chandkhan is torturing Insaf and has wrongfully confined him to the house, does not allow him to go out even to the school and although the child is keen to meet his mother, he is being deprived from her custody and is not allowed to meet her. She therefore moved an application Under Section 97 of the Criminal Procedure Code before the learned Judicial Magistrate No. 3, Jodhpur. The learned Magistrate issued notice to the opposite party and after making an enquiry on the basis of the affidavits, came to the conclusion that the manner in which the child Insaf was kept by Chandkhan amounted to his wrongful confinement and, therefore, he directed a search warrant to be issued for his production.
3. Aggrieved of this order, the petitioners Chandkhan and Karimji filed a revision before the learned Sessions Judge, Jodhpur but the same was rejected as not maintainable. They have, therefore, come up this court.
4. I have heard the learned counsel for the parties and have gone through the record.
5. It is urged by the learned counsel for the petitioners that the learned Magistrate had no jurisdiction to issue a search warrant under Section 97 of the Criminal Procedure Code in the circumstances of the case because there was no material before him to show that the confinement at all amounted to an offence in as much as the petitioner Chandkhan is the father of the child and under the Mohammedan law, he is a natural guardian of the child. He further contended that the detention of the child by the father who is the lawful guardian of the child can by no stretch of imagination amount to a wrongful confinement of the child or to any other offence and, therefore the learned Magistrate could not have taken recourse to Section 97 Cr. PC. It was also contended by him that the proper course for the non-petitioner, if she wanted to keep the custody of the child, was to approach the District Court under the Guardian and Wards Act and as a matter of fact, she did file an application under that Act before the learned District Judge, Jodhpur but the same was rejected for want of territorial jurisdiction and thereafter she did not file any application before the Court having jurisdiction and has wrongly taken resort to Section 97 of the Criminal Procedure Code. The learned counsel drew my attention to Mt. Khaliqan v. Emperor AIR 1945 Oudh 170, Smt. Basanti Bai v. Mohanlal and K. Sarasu v. Sengodan 1981 Cri LJ (NOC) 113 (Mad).
6. On the other hand, learned counsel for the non-petitioner urged that there was material before the learned Magistrate to show that the child was being kept in wrongful confinement and was not allowed to go even to his mother, who is entitled to his custody and if in these circumstances, the learned Magistrate directed the assurance of a search warrant, he was within his jurisdiction to do so and this Court need not interfere with the discretion exercised by him. In this connection, he placed reliance upon Barakh Singh v. Lalmuni Kuer 1977 Cri LJ 723 and Pareekutty v. Avissakutty 1978 KLT 83. He also cited some other authorities but according to me, they are beside the point and need not be referred to here.
7. I have given my careful consideration to the rival contentions. It is true that ordinarily in matters of custody of a minor child, the recourse should be made under the Gaurdian and Wards Act but at the same time, the recourse to Section 97 cannot be said to be altogether inappropriate if the circumstances of the case warrant the same. Now if it is shown to a Magistrate that a person is confined under such circumstances that the confinement amounts to an offence, he may issue a search warrant for the production of such person and the production of the child under this section is also not barred. In the present case, there was material before the learned Magistrate in the form of affidavits to show that the child Insaf was being detained by the father, the petitioner Chandkhan in such a manner that he was not even allowed to go to school or to meet his mother. In these circumstances, it will not be necessary rather proper for me to re-appreciate the evidence. Suffice it to say that the learned Magistrate relied on this evidence and has observed:
izLrqr 'kiFk Ik= ds rF;ks ls ;g rF; Li'V gS fd vizkFkhx.k us cPps dh bPNk ds fo:) tcjnLrh cPps dks vius ikl jksd dj j[kk gS rFkk mijksDr vk/kkjks ij bl rF; ij fd, tkus ds Ik;kZIr vk/kkj gS fd ftu ifjfLFkfr;ks es cPps ds bUlkQ dks vizkFkhZx.k us j[kk gS og] cU/ku vijk/k dh rkjhQ es vkrk gS A
In view of this finding, the learned Magistrate cannot be said to be wrong in taking recourse to Section 97 of the Criminal Procedure Code and his order cannot be said to be without jurisdiction and the action of the learned Magistrate does appear to be based on an authority reported in Fareekutty's case (supra) where in the learned Judge as observed as under:
Keeping the child beyond the reach of the person who is entitled to its custody would amount to wrongful confinement.
In the circumstances of the case, I do not think it necessary to go further in detail in the propriety of the order and I am dearly of the opinion that the order cannot be said to be such as interference at the hands of this Court in the exercise of its jurisdiction under Section 482 Cr. PC may be called for. The authorities relied upon by the learned counsel for the petitioners cannot be said to be of much avail in the present set of circumstances in as much as the first two authorities relate to the matters between husband and wife, the third authority, is of course, an authority under Section 97 regarding a search warrant for a minor child but the case appears to be distinguishable in as much as the factum of wrongful confinement does not appear to be present in that case. The mere taking away of the child by the father from the custody of the mother was held not to amount to an offence.
8. In these circumstances, I do not see may reason to interfere with this order.
9. However, it may be observed that the learned Magistrate has only directed the production of the child before him in pursuance of the search warrant and the matter about the custody of the child still remains to be considered by him as is envisaged by the later part of Section 97. The Magistrate is free to consider this part of the matter and will pass an appropriate order. It would not be out of place to mention here that in the case of minor, the main consideration is the welfare of the minor and the learned Magistrate would certainly keep it in view before passing any order in pursuance of the last para of Section 97 Cr. PC when the child is produced before him. in doing so, he shall afford opportunity to both the parties to place before him the relevant material by way of affidavits. The learned Magistrate may further take evidence in this respect if he feels that the material before him for the consideration of this aspect of the matter is not sufficient.
10. With the above observations, the petition is dismissed. The parties are directed to appear before the learned Magistrate on 27-4-1985.