{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 676 OF 2006 Nagnath s/o Maruti Bansode, Age-35 years, Occ-Service R/o Yenegur, Tq-Omerga Dist-Osmanabad APPLICANT VERSUS 1. Gaulan @ Anita w/o Nagnath Bansode Age-28 years, Occ-Household R/o Naddi Hattarga, Tq-Nilanga Dist-Latur 2. The State of Maharashtra RESPONDENTS ....... Mr.M.A.Kandharkar, Advocate for applicant Mr.S.A.Nagarsoge h/f Mr.N.L.Jadhav, Advocate for respondent No.1 Mr.B.J.Sonawane, APP for respondent No.2 State ....... [CORAM : A.V.POTDAR, J.] DATE: 16 th February 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.18/2005 dated 29.09.2005 thereby rejecting the criminal revision application. {2} 2. Rule. Rule made returnable forthwith. With the consent of the parties, heard finally at the stage of admission itself. 3. Briefly stated the facts of the present case are as follows: Applicant and first respondent are husband and wife. Their marriage was performed in the year 1996. It appears that due to dispute between the spouses the first respondent started residing separately at her maternal house and she filed an application claiming maintenance from the applicant. When the first respondent had left the house of the applicant, she had already given birth to a female child, which was with her father, i.e. with the applicant. It appears that on 06.06.2005, the first respondent filed an application before the JMFC, Omerga u/s 97 of the Criminal Procedure Code and prayed for issuance of a search warrant for minor Rajeshree and to hand over the custody of the daughter, which was allowed. It also appears that the applicant had filed an application to recall the order, however the same was rejected and accordingly under the search warrant the daughter was produced and her custody was handed over to the first respondent. It further appears that the said order was challenged by the applicant by filing criminal revision application No.18/2005 before the Learned Additional Sessions Judge, Omerga, however the same was dismissed by the learned Additional Sessions Judge vide order dated 29.09.2005, which order is impugned in this {3} application. 4. Learned counsel for applicant has contended that though the first respondent is entitled to ask for the custody of the minor girl, yet for the said purpose asking for search warrant u/s 97 of the Criminal Procedure Code and after producing the minor under the search warrant and handing over her custody to respondent No.1 is illegal. If the first respondent wishes to have the custody of the minor girl, then she has the remedy to file application under the Guardians and Wards Act instead of opting for short cut method under the provisions of Criminal Procedure Code. This Court in the judgment reported 2004 (1) Mh.L.J. 253 in the matter of “Marotrao s/o Shamrao Pachare V/s Usha Marotrao Pachare” so also in the judgment rendered in criminal application No.234/2004 dated 28.01.2010 has clearly made it clear that to file an application u/s 97 instead of availing proper remedy is incorrect. This Court has observed that the core issue for consideration is about the scope of issuance of search warrant u/s 97 of the Cr.P.C. where in case a person is wrongfully detained or his liberty is confined wrongfully whether in such cases search warrant can be issued u/s 97 of the Cr.P.C. If the liberty of an individual is not confined wrongfully, then as observed in the above referred judgments the short cut method to apply for search warrant u/s 97 of the Cr.P.C. and then to obtain custody of the individual is not permissible. On perusal of the application filed by respondent No.1 before the JMFC, it is clear that minor Rajeshree {4} was not wrongfully confined, as the applicant is her father and hence provisions of section 97 of the Cr.P.C. would not apply. In the premise, the orders passed by both the courts below are without considering this strict legal position of law and hence require interference at the hands of this Court. 5. In the result, the application succeeds. The order dated 29.09.2005 rendered in Criminal Revision Application No. 18/2005 is hereby quashed and set aside. Respondent No.1 is hereby directed to hand over the custody of minor Rajeshree to the applicant within a period of four weeks from today. 6. Rule is thus made absolute on the terms indicated above. [A.V.POTDAR, J.] drp/A10/criapln676-06