{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 234 OF 2004 Ambeshwar Atmaram Sonar Age-30 years, Occ-Agriculture R/o Khambi Galli, Dharangaon, Dist-Jalgaon APPLICANT VERSUS 1. Nandabai d/o Kashinath Sonar Age-26 years, Occ-Housewife R/o Janata Nager, Shirpur Dist-Dhule 2. The State of Maharashtra RESPONDENTS ....... Mr.L.V.Sangit, Advocate for applicant Mr.S.P.Brahme, Advocate for respondent No.1 Mr.B.J.Sonawane, APP for respondent No.2 State ....... [CORAM : A.V.POTDAR, J.] DATE: 28th January 2010 ORAL JUDGMENT: 1. This is an application u/s 482 of the Criminal Procedure Code, by which the applicant has challenged the order passed in Criminal Revision Application No.03/2003 dated 12.11.2003 by which the learned 3rd Additional Sessions Judge, {2} Dhule has confirmed the order dated 19.12.2002 passed by JMFC, Shirpur in Criminal Miscellaneous Application No.226/2002. 2. Rule was issued in this application on 09.03.2004 relying on the judgment reported in 2004 (1) Mh.L.J. 253 in the matter of “Marotrao s/o Shamrao Pachare V/s Usha Marotrao Pachare”. 3. Heard learned counsel for the applicant followed by the submissions of learned APP and learned counsel for respondent No.1. 4. The core issue for consideration in this application is about scope of issuance of search warrant u/s 97 of the Criminal Procedure Code. In the premise, it is necessary to reproduce section 97 of the Criminal Procedure Code, which reads thus- “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.” 5. Read the application on which order dated 19.12.2002 {3} is passed. Admittedly, the applicant and respondent No.1 have separated mutually. During their wedlock a son, by name, Bhushan, was born. At the material time, his age was 2 years and he was with the present applicant. Respondent No.1 intended to seek custody of the minor and hence moved an application No. 226/2000 before the JMFC, Shirpur praying for issuance of search warrant against present applicant u/s 97 of the Criminal Procedure Code with a further prayer to hand over the custody of the minor to her. 6. Perusal of the said application indicates that there is no allegation against the present applicant that the applicant had wrongfully confined the minor. Section 97 would come in picture only if the person, for whom search warrant is prayed, is confined wrongfully otherwise not. Since it is not the case of respondent No. 1 that the minor was wrongfully confined by the applicant, issuance of search warrant u/s 97 is not warranted. 7. It appears that without considering the legal aspects, order is passed by the JMFC and confirmed by the Additional Sessions Judge. If respondent No.1 intends to obtain custody of the minor, the proper remedy is to apply u/s 6 of the Hindu Minority and Guardianship Act and not u/s 97 of the Criminal Procedure Code. 8. In view of this legal position, the application succeeds. {4} Accordingly, the order dated 19.12.2002 passed by learned JMFC, Shirpur and confirmed by learned 3rd Additional Sessions Judge, Dhule vide order dated 12.11.2003 is hereby quashed and set aside. 9. Rule is thus made absolute on the terms indicated above. [A.V.POTDAR, J.] drp/A10/criapln234-04