1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRI.APPLICATION NO.78 OF 2008 (NITIN BHAURAO TIDKE AND ANR. VS. KU.VAISHALI RAMKRUSHNA KATOLE & ANR.) _____________________________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders ______________________________________________________________________________________________ CORAM : R.C.CHAVAN, J. DATED : NOVEMBER 19, 2008. 1. Heard Shri Bhamburkar, learned counsel for the applicant, Shri Amol Deshpande, learned counsel for respondent No.1 and Shri Deepak Thakare, learned Assistant Public Prosecutor for respondent No.2/ State. 2. By this application the applicants seek quashing of order passed by learned Judicial Magistrate First Class, Akot below Exh.5 in Misc. Civil Application No.215 of 2007, whereby the learned Magistrate directed issuance of search warrant under Section 97 of the Code of Criminal Procedure for production of applicant No.2 Janhavi Nitin Tidke. 2 3. The learned counsel for the applicant points out that custody of Janhavi was made over to the applicant in terms of settlement between Non-applicant No.1 Vaishali and Nitin Tidke, which is evidenced by stamp paper, a copy whereof has been filed on record. The Non-applicant No.1 had complained before the Magistrate that her signature was obtained on stamp paper by threatening her. For seeking warrant under Section 97 of the Code of Criminal Procedure it would be necessary for the applicant to show that the person whose production is sought is wrongfully confined. In this case, it appears that there has been a document between the parties and even the Non- applicant No.1 admits that she had signed the stamp paper, but claims that she had been threatened for signing that stamp paper. That stamp paper is dated 2nd November, 2007. The application is filed on 17th December, 2007. 4. In these circumstances, it would not have been possible for the learned Magistrate to hold that applicant No.2 Janhavi had been wrongfully confined. Remedy open to Non- applicant No.1 to approach the competent Civil Court i.e. 3 District Court for seeking custody of the child if she wanted. The question whether the Non-applicant No.1 had signed the document forcibly has to be gone into by the competent Civil Court. 5. In view of this, the impugned order is set aside, leaving remedy to Non-applicant No.1 to approach the Civil Court open. The application is, accordingly, disposed of. JUDGE RR.