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Bombay High Court
Marotrao S/O Shamrao Pachare And ... vs Usha Marotrao Pachare on 6 August, 2003
Equivalent citations: I (2005) DMC 337, 2004 (1) MhLj 253
Author: P Brahme
Bench: P Brahme

JUDGMENT P.S. Brahme, J.

1. This criminal revision application is preferred by the applicants herein
challenging the order passed by the Additional Sessions Judge, Achalpur on 16-9-
1999 in Criminal Revision No. 6/1999, allowing the revision application filed by the
non applicant herein and, directing the applicant No. 1 to produce the applicants No.
2 to 4 before the Judicial Magistrate, First Class, Daryapur, for handing over the
custody of the children to the non applicant.

2. Material facts of the case may be stated in brief as follows - The non applicant
Sau. Usha Pachare is legally wedded wife of the applicant No. 1 -Marotrao Pachare
and their marriage was performed about 9 years back. As usual, after marriage they
lived together and cohabited and three children namely applicants No. 2 to 4, were
born to the non-applicant out of this wedlock.
3. The non applicant filed an application under section 97 of the Criminal Procedure
Code on 4-1-1999 in the court of judicial Magistrate, First Class, Daryapur
requesting for issuing of production warrant for producing the children (applicants
No. 2 to 4) before the Court and for handing over them to her custody. In her
application she has alleged that the applicant No. 1 has driven her out of the house
and he has snatched away the custody of applicants No. 2 to 4 from her.
4. The applicant No. 1 resisted the claim of the non-applicant contending that the
non-applicant for the reasons best known to her left her matrimonial home leaving
the children in the custody of the applicant No. 1 about three months earlier to the
presentation of the application in the Court of Judicial Magistrate first Class,
Daryapur,
5. The learned Magistrate taking into consideration the factual position, as also the
legal position as to the custody of minor children reached to the conclusion that the
non-applicant wife has failed to make out a case of wrongful confinement of the
children or any danger to their life.
6. Learned Magistrate also taken into consideration admitted fact that the children
are living with the applicant No. 1 for more than 3 months as per the statement of
the non-applicant. The Court also found that there was no material on record to
show that the applicant no. 1 has wrongfully confined the children. He also found
that the applicant - wife has failed to substantiate her allegations in the application
that she was driven out from the house and the children were taken away from her
custody. The learned Magistrate, therefore, was of the view that merely to get the
custody of the children recourse to the provision under section 97 of the Criminal
Procedure Code for issuance of production warrant is not at all warranted. The wife
also being natural guardian of the children was entitled to get custody of the
children and for that she has independent remedy in Civil Court. In keeping with
these conclusions, the learned Magistrate rejected the application.
7. The non-applicant taking exception to the order passed by the Magistrate
rejecting her application, preferred Criminal Revision Application No. 6/1999
before the Additional Sessions Judge, Achalpur. The Additional Sessions Judge
while allowing the revision application and setting aside the order passed by the
Magistrate observed - "After completion of the age of five years the father may
claim custody of the same, but till the time of that age, the mother is entitled to the
custody of the children and refusing the custody of the same or keeping the children
with him is denying right of mother and hence it is a wrongful Act". He also
observed, - "In particular circumstances of this case, considering the very small age
of the children keeping away from the approach of the mother, who is entitled to
their custody, would amount to wrongful confinement, therefore, she is entitled to
the search warrant as prayed for under section 97 of the Criminal Procedure Code."
8. That is how, the matter has come to this court. This court on 25-10-1999 while
issuing notice to non applicant passed orders of interim stay in terms of prayer
Clause (ii) of the revision application, thereby the order passed by the learned
Additional Sessions Judge, Achalpur in revision came to be stayed and the
consequence of that is the children still remained in the custody of the applicant No.
1. This situation is relevant to consider the claim of the applicants before us in light
of the fact that the children have now grown up and particularly applicant No. 4
namely Pooja who was admittedly a sucking child when the non applicant moved
the trial court for production warrant, is now 51/2 years old. It has to be mentioned
that the non-applicant while seeking custody of the children taking recourse to
provision under section 97 of Criminal Procedure Code before the Magistrate gave
emphasis on the fact that the applicant No. 4 was then sucking child. It appears that
the learned Sessions Judge was swayed away by the fact that the applicant No. 4
was then a sucking child and that is why he passed the order directing the applicant
No. 1 to produce the children.

9. Mr. Gilda, learned counsel for the applicants submitted that the learned
Additional Sessions Judge has committed patent illegality in holding that as the non
applicant is entitled to the custody of minors, at least after the completion of five
years, she is entitled to custody and since the custody was denied to her, she is
entitled to file application seeking production warrant under section 97 of Criminal
Procedure Code. Learned Additional Sessions Judge without considering the aspect
that there is a remedy provided under the Hindu Minority and Guardianship Act for
handing over the custody of children, straightway ordered that since the non-
applicant is entitled to custody, keeping custody of children with the father is a
wrongful act, amounts to wrongful confinement. This observation of the learned
Additional Sessions Judge has absolutely no basis in law. He submitted that section
97 of Criminal Procedure Code conferred power to issue search warrant for
production of a person who is wrongfully confined. In the case before hand the non-
applicant has not made out a case that the children were wrongfully confined and
therefore, the learned Additional Sessions Judge ought not to have directed to hand
over the custody of the children and as such the learned Additional Sessions Judge
has exceeded the limits of his jurisdiction vested in him in passing the impugned
order. It is submitted that the mother who is entitled to the custody of the children,
has to file an application as per the provisions of Hindu Minority and Guardianship
Act, 1956 for obtaining the custody of the children. It is submitted that there was no
perversity pointed out in the well reasoned order passed by the learned Judicial
Magistrate, First Class and the view taken by the learned Judicial Magistrate, First
Class being perfectly legal, the learned Additional Sessions Judge has committed
serious error in law, as well as in exercise of jurisdiction by setting aside the well
reasoned order passed by the Judicial Magistrate First Class.

10. Learned counsel placed reliance on decisions reported in 1992(2) BCR 194,
Himmat s/o Kashinath Patil v. Mangala d/o Shyamrao Patil and Anr. 1992 Crl. LJ.
2231, Duryodhan Mahanta Petitioner v. Saraswati Mahanta Opposite Party, 1982
Cri.LJ. Page 1446, Ashok Thadani, Petitioner v. Ramesh K. Advani and Ors.,
respondents, 1975 Cri.LJ, 1131, Sk. Razak, Applicant v. Riyasathbi and Ors.,
Opponent, 1969 AIR Delhi 304, Banarsi Lal Petitioner v. Smt Neelam and
Ors.,Respondents.

11. Mrs. Deshpande, learned counsel appearing for the non applicant placing
reliance on decision in 7975 Cri.LJ. NOC 98 (Ker.), K. Pareekutty and Anr.,
petitioner v. Ayyikkal Ayissakutty and Anr., respondents submitted that the learned
Additional Sessions Judge was right in granting custody of the children to the non-
applicant wherein on facts it was found that the children were removed by the
applicant No. 1 from her custody and that removal of the children from the custody
of the lawful guardian is wrongful act amounts to wrongful confinement.
12. I have given thoughtful consideration to the submissions made by the learned
counsel for the parties in the light of the various decisions relied upon by them. The
controversy in the matter veers around the scope and jurisdiction of the Magistrate
in exercise of powers envisaged under section 97 of Criminal Procedure Code,
1973. It is therefore, appropriate to reproduce section 97 of the Criminal Procedure
Code. Section 97 is reproduced below for ready reference :

"Section 97 - 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 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."

13. The action under section 97 is to meet emergency. A reasonable belief by the
Magistrate that the confinement of the person concerned amounts to an offence is
sine qua non for the exercise of the jurisdiction under this section. Therefore, as
observed by this Court in 7992(2) BCR 194, Himmat Kashinath Patil Petitioner v.
Mangala d/o Shamrao Patil and Anr. respondents, unless there is material before the
Magistrate and the Magistrate believes that the confinement of the person concerned
is an offence, the jurisdiction under section 97 could not be exercised at all. Section
97 does not authorise the Magistrate to go into the disputed questions as to which of
the claimants is entitled to custody of a minor. Such question will always have to be
left to the Civil Courts empowered under the different statutes. It would be also
beyond the scope of jurisdiction of the Magistrate to assess the comparative merits
and demerits of the claim of a father and mother or other person claiming the
custody and to find out in whose custody the well being of the minor is protected.

14. Somewhat similar question fell for consideration before the Madras High Court
in case of K. Sarasu v. Sengodam, 1981 Cri.LJ. NOC 113 (Mad.). In that case father
took away his own child below five years of age from keeping of its mother. The
mother filed application for custody of the child from its father under section 97 of
Criminal Procedure Code on the ground that she has got permanent right of
guardianship in preference to that of the father. Her application was rejected by the
Court. It was held that father was natural guardian and hence he has not committed
any offence in taking away his own child and therefore, question of exercise of
jurisdiction under section 97 did not arise. The Court also observed 'The question
whether welfare of child demands, their custody to be with mother or with father, is
a matter to be decided in a Civil Court, that cannot be gone into in a proceeding
under section 97 of Criminal Procedure Code.

15. It is true that in the case of K. Pereekutty Anr., petitioner v. Ayyikkal

Ayissakutty and Anr., 1978 Cri.LJ. (NOC) 98 Ker., relied upon by the counsel for
the non applicant, it has been held that in case minor child aged about 4 years is
removed from the custody of a mother, issuance of warrant search under section 97
was right in exercise of jurisdiction by the Magistrate as envisaged under section 97
of Criminal Procedure Code. But factual position in that case was that Muslim
Mother was in law entitled to the custody of her child, it being aged about only 4
years and as was evidenced by the fact of award of maintenance in respect of the
child after she was divorced the child was in her custody, search warrant could be
issued at her instance when the child was removed from the custody by the father of
the child by using physical force. In such a case, the Magistrate issuing the warrant
could be said to have reason to believe that the confinement by the father amounted
to wrongful confinement. This decision reinforces a requirement of issuance of
search warrant under section 97 of Criminal Procedure Code for wrongful
confinement on the part of one of the parents of the child in forcibly removing the
child from the lawful custody of the guardian without there being any regard for the
welfare of the child. Therefore, it is crystal clear that removal of a child from the
lawful custody of a guardian must amount to an offence of wrongful confinement so
as to attract provisions of section 97 of Criminal Procedure Code for issuance of
production warrant to produce the child before the Court. It is needless to say that
wishes of the child for removing from the custody of the lawful guardian is
absolutely irrelevant consideration. At the same time welfare of the child for getting
custody of the child taking recourse of section 97 of Criminal Procedure Code is not
a factor relevant for consideration. However, that is a factor very much relevant in
proceeding before the Civil Court for custody of child under the provisions of the
Hindu Minority and Guardianship Act.

16. It is revolting to model sense of justice and fair play that a person who has
lawful custody of the minor should be deprived of the custody by crude means
which has no sanction under law, Removal of the child by using physical force from
the custody of the mother is prima facie a wrongful Act. Keeping the child beyond
the reach of the person who is entitled to its custody would amount to wrongful
confinement. Therefore, if one of the guardians of the child by using physical force
removes the child from the custody of other guardian who is entitled to the custody
and also does not allow the guardian who is deprived to get access to the child so
also the custody of the child, that amounts certainly wrongful confinement of the
child and therefore, it is in that situation the jurisdiction of the Magistrate is invoked
under section 97 of Criminal Procedure Code.

17. The decision in case of Duryodhan Mahanta petitioner v. Saraswati Mahanta,

Opposite Party, 1992 Cri.LJ, 2231 relief upon by the counsel for the applicants
directly deals with the issue involved in the present cases. In that case the propriety
of the order passed under section 97 of Criminal Procedure Code 1933 was the
subject matter of the adjudication. In that case search warrant under section 97 came
to be issued at the instance of mother for custody of the child under 5 years and
secondly the child was recovered from the custody of father. It was found ultimately
by the High Court while considering the revision application, arising out of the
order passed by the Magistrate, that though such direction of producing the child
and giving it in the custody of the mother till he attains majority was not
contemplated in terms of section 97. However, it was found that it would be
inequitable to interfere with the order and the remedy of the petitioner was to move
the Civil Court in appropriate proceedings. Regarding the provisions contained in
section 97 of Criminal Procedure Code it was observed by the Court that Magistrate
is authorised to issue a search warrant if he has reason to believe or on the truth of
the allegations about the wrongful confinement of a person the Magistrate cannot
issue search warrant unless confinement amounts to an offence. Section 97 of the
Code corresponds to section 100 of the Old Code of 1898. This section
contemplates only wrongful confinement as defined in sections 339 and 340 of
Indian Penal Code. Use of expression "reason to believe" makes the legislative
intention very clear that unless the Magistrate has reason to believe that the person
is confined in such circumstance that confinement itself amounts to an offence,
issue of a search warrant under this section is without jurisdiction. The expression
"reason to believe" implies belief arrived at judicially after application of judicial
mind on consideration of available material with sense of responsibility and that of
mind without ignoring as far as possible the other side of the controversy. When
child is in the custody of either father or mother it becomes rather difficult to
immediately come to a decision that confinement is illegal. A Magistrate taking
action has to satisfy himself that there exist materials to induce his belief that the
person is confined in such circumstances as to make the confinement amounts to an
offence. This is the requisite precondition before action can be taken. The
allegations need not be absolute in precision. In the absence of material which prima
facie shows that confinement amounts to an offence, action under section 97 would
be improper. When a father takes his own child from the keeping of the mother, he
does not thereby commit an offence, because is the natural guardian of the minor,
and the mother cannot have a permanent right of guardianship in preference to that
of a father. Therefore, even accepting that the applicant No. 1 retained the custody
of children with him when non applicant left the matrimonial house, by no stretch of
imagination it can be said that he has committed offence of wrongful confinement
by retaining children in his custody. Therefore, issuance of production warrant
under section 97 of the Code was improper as also illegal exercise of jurisdiction.
18. Under section 6 of the Hindu Minority and Guardianship Act, the mother is
guardian of the child who has not completed age of 5 years and may have custody
of minor. According to section 6, preferential guardian is the natural father, except
when minor has not completed age of five years, in which circumstances the
custody shall be that of mother. The use of the word "ordinarily" used in section 6
reflects legislative intent to be that welfare of the child has to be kept in view and
thereafter custody should be decided. Such a question of welfare of the child is to be
decided by the Civil Court in an appropriate proceeding as observed by the Apex
Court in , Mrs. Elizabeth v. Arvand. Paramount consideration is welfare of the child.
Therefore, the learned Additional Sessions Judge was not justified to direct that the
children shall be produced by applicant No. 1 for handing over them in the custody
of the mother non applicant till they attain majority. Such direction is not
contemplated in terms of section 97 of Criminal Procedure Code.
19.The same legal position has been enunciated in the case of Banarsi Lal -
Petitioner v. Smt. Neelam and Ors. respondents, AIR 1969 Delhi 304 while
considering the provisions under section 100 of Criminal Procedure Code which
was corresponding to section 97 of the Code, it is observed "Section 100 Criminal
Procedure Code is of course a provision of emergency, but this by itself does not
mean that the Magistrate acting under this section is to issue warrants of search
automatically without applying judicial mind to the allegations contained in the
application and to the other material which may be available to him. The expression
"reason to believe", which is the real core of this section, implies a belief in judicial
mind arrived at after considering all the available material with a sense of
responsibility and effort of mind, without ignoring so far as possible, the other side
of the controversy.

20. This Court has in the case of Sk. Razak v. Riyasathbi and Ors., 1975 Cri.LJ.
1131 has held that Magistrate coming to conclusion that there was confinement of
the child which amounted to an offence, issuance of warrant under section 100
Criminal Procedure Code (1898) was justified and that it being the subjective
satisfaction of the Magistrate, cannot be lightly interfered with at the revisional
stage unless a strong case is made out. Learned counsel for the non applicant has
heavily placed reliance on this decision to buttress submission that interference with
the order passed by learned Additional Sessions Judge in the case before hand is not
called for. Having regard to the facts and circumstances of the case before hand and
particularly learned Magistrate had reached the conclusion that the children being
retained in the custody of applicant No. 1, father did not amount to wrongful
confinement, the application of provision under section 97, Criminal Procedure
Code by the learned Additional Sessions Judge for issuance of warrant was
absolutely improper, there is justification for this court to interfere with the order
passed by the learned Additional Sessions Judge. The position would have been
different had a Magistrate having exercised jurisdiction under section 97 of
Criminal Procedure Code issued production warrant directing the applicant No. 1 to
produce the children, then in that case, there would have been no justification for
interfering with the subjective satisfaction of the Magistrate for issuing the warrant.
21. The Andhra Pradesh High Court in the Case of Ashok Thadani, v. Ramesh K.
Advani and Ors., 1982 Cri.LJ. 1446 while considering the powers of the Magistrate
under section 97 of the Criminal Procedure Code has observed that the Magistrate is
not empowered to issue search warrant under section 97 on mere allegations made
in the affidavit filed along with the petition before him. The expression "has reason
to believe that any person is confined under such circumstances that the
confinement amounts to an offence" requires the Magistrate on guard before he
issues search warrant.
22. In the case before hand while narrating the facts in earlier part of judgment it is
stated that the children were in the custody of the applicant No. 1 and the non-
applicant till the time they were living together. It is a matter of record that the non-
applicant left the matrimonial home, leaving the children in the custody of the
applicant No. 1, that was also three months before the institution of the application
by the non applicant in the court of the Magistrate. Taking into consideration the
material on record, the learned Magistrate had come to the conclusion that the
children being remaining in the custody of the applicant No. 1 did not amount to an
offence of wrongful confinement, nor there was any specific allegation by the non
applicant that the applicant No. 1 has by use of physical force, taken the children in
his custody and retained them. The learned Magistrate also found that the non
applicant was not in any manner deprived of the custody of the children. It is
needless to say that if at all the non applicant desired to have custody of the child,
the only recourse which she could have was to initiate proceedings for custody of
the children as contemplated under section 6 of the Hindu Minority and
Guardianship Act. The very fact that the children having in the exclusive custody of
the applicant No. 1 for over three months, justified the Magistrate to come to the
conclusion that there was no wrongful confinement of the children by the applicant
No. 1. In such circumstances the learned Magistrate was perfectly justified in not
exercising jurisdiction under section 97 of Criminal Procedure Code for issuance of
production warrant. As against that the learned Additional Sessions Judge has
committed an error in law as well as in exercise of jurisdiction under section 97 of
the Criminal Procedure Code, in issuing direction to produce the children in the
court. There was absolutely no jurisdiction and justification also for Additional
Sessions Judge to issue production warrant under section 97 of Criminal Procedure
Code, if that is so, then this court has justification to interfere with the order. The
order passed by the learned Additional Sessions Judge can not sustain being
intrinsically illegal and in excess of the jurisdiction envisaged under section 97 of
Criminal Procedure Code. The revision application, therefore, has to be allowed and
hence the following order is passed.
ORDER

23. The revision is allowed. The order passed by learned Additional Sessions Judge
that is under challenge is set aside and the order passed by the Magistrate is
restored.