( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 625 OF 2009 1. Shri Rajesh Laxman Kedar 2. Shri Laxman Rakhmaji Kedar 3. Sau. Shashikala Laxman Kedar, All r/o at Room No. 304, 3rd Floor, Belona Building, Pant Nagar, Ghatkopar (East), Mumbai. PETITIONERS VERSUS 1. Sau. Humeshwari Rajesh Kedar, R/o House No. 3558, Lane No.1, Muglai, Sakri Road, Dhule, District Dhule. 2. The State of Maharashtra RESPONDENTS ..... Mr. B.S. Shinde, advocate holding for Mr. S.I. Nandode, advocate for the petitioners. Mr. P.S.Runwal, advocate for the respondent No. 1. Mrs. R.D. Reddy, APP for the respondent No.2/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 14th August, 2009] ( 2 ) ORAL JUDGEMENT : 1. Rule. Rule made returnable forthwith and heard finally by consent of the learned counsel for the parties and learned A.P.P. 2. By this petition, the petitioner seeks to challenge order rendered by the learned Judicial Magistrate, Dhule in Criminal Application No. 182/2009 directing issuance of search warrant against him for searching out minor son of the petitioner, namely, Deo aged about four (4) years. 3. The petitioner No. 1 is husband and the petitioners No. 2 and 3 are the inlaws of the respondent No.1. The marriage between petitioner No. 1 and the respondent No. 1 was performed on 21st November, 2003. They are blissed with two (2) issues, one being the minor son by name Deo aged about four (4) years and another being a minor daughter by name Jui aged about one year. The spouses are incompatible and, therefore, ( 3 ) fell apart from each other. The respondent No. 1 filed a complaint against the petitioners for offence punishable under section 498A of the I.P. Code. The application filed by the respondents purports to show that on 11th February, 2009, she was driven out of the house. She alleged that on 13th February, 2009, the petitioners visited her parental home and demanded amount of Rs. one (1) lac. They also threatened that if the amount is not paid, she will not get her son. That is why, she had filed the F.I.R. for offence punishable under section 498A read with section 34 of the I.P. Code against them. The respondent No. 1 filed application for issuance of search warrant under section 97 of the Criminal Procedure Code alleging that on 19th April, 2009, she had gone with her parents to house of the petitioners and then was beaten up by them. She alleged that while she was taking the minor son (Deo) near her, the petitioner No. 1 snatched the child and drove her out. She alleged that the condition of the minor child was noticed to be bad. She contended that if the minor child is not given in her custody, then there is danger to his life. ( 4 ) 4. The learned Magistrate issued notice and directed, after appearance of the petitioners, that the petitioner No. 1 shall produce the minor in the Court. The petitioner No. 1 admitted before the learned Magistrate that the minor son was in his custody at Mumbai. Since the minor was not produced before the Court and that the petitioners were apparently not willing to produce him, the learned Magistrate directed issuance of search warrant and production of the minor i.e. Deo. 5. Heard learned counsel for the parties and learned A.P.P. 6. The material question to be determined is as to whether search warrant can be issued against the father of the minor who has right to keep custody of the child unless the custody is lawfully given to the mother or any other person through process of the Court. There cannot be any duality of opinion about legal position that the search warrant may be issued if it is found that a person is confined in the custody and that such ( 5 ) confinement would amount to an offence. It is well settled that for purpose of invoking powers under section 97 of the Criminal Procedure Code, the Magistrate must be satisfied that the person is confined, there are circumstances which indicate that the confinement would tantamount to an offence and indulgence of the Court is necessary to secure presence of such person. 7. In the fact situation of the present case, the application itself shows that the respondent No. 1 (wife) was allegedly driven out of the matrimonial home on 11th February, 2009. After a couple of days, the amount of Rs. one (1) lac was demanded and she was threatened that if the amount was not paid, the minor son (Deo) will not be returned to her. This statement in the application under section 97 of the Criminal Procedure Code would impliedly show that the custody of the minor son was then with the petitioners. There is absolutely no tangible material on record to show that the custody of minor son was with the mother after 11th February, 2009. In her application, the respondent No. ( 6 ) 1 did not refer to the custody of minor daughter Jui. She filed the application dated 28th April, 2009 after about couple of months of her separation from the house of the petitioners. The recitals of the application would show that on 19th April, 2009, she and her parents had gone to the house of the petitioners and again, she was beaten up by them. What she has alleged in paragraph No. 4 of her application needs to be considered in appropriate manner. The tenor of the averments would show that while she was taking minor son Deo near her, the petitioner No. 1 snatched away him from her and thereafter, she was driven out of the house. Thus, it is amply clear that the minor son was not with her when she had gone to house of the petitioners on 19th April, 2009, but he was in the custody of the petitioners. The relevant averments may be reproduced as follows : “ ( 7 ) (While the applicant was taking the respondent No. 4 near her, the opponent No. 1 snatched away him and drove her out. The applicant pleaded with the opponents and demanded custody of minor Deo, but they did not give him to her) 8. The tenor of the application would show that the respondent No. 1 wanted to get custody of the minor son from the petitioners. The purport of the application is to adopt short cut method of obtaining the custody of the minor son. The respondent No. 1 (wife) may seek custody of the minor child on the ground that he is below five (5) years of age, but for such purpose, she is required to approach the proper forum and that the application under section 97 of the Criminal Procedure Code is certainly not the remedy available. It is pointed out by the learned counsel for the respondent No. 1 that revision application was preferred against the impugned order vide criminal revision application No. 92/2009, but the petitioners withdrew the same. He seeks to rely on observations in “Rajinder Prasad v. ( 8 ) Bashir and others” (AIR 2001 S.C. 3524). The Apex Court held that the petition under section 482 of the Criminal Procedure Code would not be maintainable when earlier revision petition filed under section 397 seeking same relief has been dismissed as not pressed into service and more so when no special circumstances are made out. In the present case, however, this petition is filed under Article 227 of the Constitution and that the special circumstances appear to have been made out in as much as the petitioners have explained that since the impugned order was of interlocutory nature, they were advised that the revision petition was not maintainable and as such, it was withdrawn. Needless to say, such conduct of the petitioners would not dis-entitle them from seeking the relief by filing the writ petition. 9. Mr. Shinde, appearing for the petitioners, seeks to rely on observations in “Anil Baburao Angalwar v. Cynthia Bernard Samuel Anil Baburao Angalwar & another” 2007 (2) Bom.C.R. (Cri.) 203, “Vishal Jivan Jogure v. Megha Vishal Jogure & another” 2006 (1) ( 9 ) Bom.C.R. (Cri.) 959 and “Marotrao Shamrao Pachare & others v. Usha Marotrao Pachare” 2005 (Supp.) Bom.C.R. (Cri.) 82. The learned Single Judges of this Court have taken a consistent view that the proceedings under section 97 of the Criminal Procedure Code are not maintainable with a view to seek custody of a child from either of the parents. 10. The learned Magistrate failed to appreciate that before issuance of the search warrant, there must exist tangible material to believe that the custody of a person with another person against whom such warrant is to be issued, would amount to confinement and moreover, such confinement would tantamount to an offence. The learned Magistrate took the averments in the application as gospel truth. It has to be seen that some times the spouses are likely to abuse the process of law to obtain custody of the child or to harass the other side by taking recourse to section 97 of the Criminal Procedure Code. The criminal Courts are required to be on guard in this behalf. Considering the background facts, the ( 10 ) legal position and the nature of the impugned order, I have no hesitation in holding that the impugned order is quite arbitrary and unsustainable. 11. In the result, the petition is allowed. The impugned order is quashed. The Rule is made absolute accordingly. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIWP625-09