Under which circumstances second application U/S 97 of CRPC is maintainable?

If the Court ultimately holds that keeping of

the child in the manner alleged in the subsequent

application, in fact amounts to illegal confinement, then

the same cannot be restricted to any particular date.

Therefore, in particular, looking at the statutory intent

behind enactment of Section 97 of Cr.P.C. it can be safely

held that in the peculiar facts and circumstances of the

present case, the filing of the subsequent application

cannot be treated as barred by law. Moreover, as has been

argued by Mr. Pattanayak, there is no concept of res

judicata in criminal jurisprudence. From the facts

narrated hereinbefore, it is evident that there is dispute

between the petitioner and her husband and that their 2

and ½ years child (at the relevant time) was alleged taken

away forcibly by opposite party no.3 and the petitioner

was not allowed to meet her child. Further, the child is

said to be kept confined to a room and there is also some

danger to its life. Now, whether the allegation as above is

correct and/or whether this would amount to wrongful

confinement of the child would depend on the facts and

circumstances of the case but it would suffice to say that

if the allegations leveled by the petitioner are accepted on

their face value, the possibility of such offence having

been/being committed cannot entirely be ruled out.

Reference to Section 340 of IPC would be apposite at this

stage which reads as follows:

“340. Wrongful confinement.—Whoever

wrongfully restrains any person in such a

manner as to prevent that person from

proceedings beyond certain circumscribing

limits, is said “wrongfully to confine” that

person.”

It all depends on the facts and circumstances of the case.

To such extent therefore, this Court is of the considered

view that the second application filed under Section 97 of

Cr.P.C. by the petitioner was maintainable. {Para 5}

IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLREV No. 196 of 2022

Amrita Ray  Vs State of Odisha and Others

CORAM:

JUSTICE SASHIKANTA MISHRA

Dated: 7th February, 2023

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Whether Magistrate can issue a search warrant U/S 97 Cr.P. C. to search for the person confined outside the territorial jurisdiction of said Court?

 Secondly, respondent No. 1 along with respondent No. 2 was residing at village Bhadgaon, District Jalgaon, Maharashtra and, therefore, the SDM, Burhanpur had no jurisdiction to issue any search warrant out of the territory of State of Madhya Pradesh, hence the proceedings initiated before the SDM, Burhanpur was without any jurisdiction.

Madhya Pradesh High Court

Gajendra vs Smt. Jayshree on 3 November, 2015

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Whether it is necessary to issue notice before issuance of Search warrant U/S 97 of CRPC?

Section 97, Cr. P. Code does not require a notice of or inquiry before issue of a warrant, but all that is necessary is that the Magistrate must be satisfied there has been wrongful confinement and the same amounts to an offence. But a notice or an inquiry before issue of a search warrant would be a rule of prudence in proper cases, much more so, when it affects the custody of a child and the dispute is between the husband and wife. The words used in Section 97 of the Code of Criminal Procedure Code “has reason to believe” indicate that the concerned Magistrate should apply his mind to the facts of the case and thereafter proceed to issue a search warrant and at the same time the said order should indicate the reasons in support of the order so that the superior courts may be in a position to judge whether there has been a proper exercise of the discretion on not. Unless the reasons are borne out by record and failure to state reasons would often lead to the inference that the exercise of the discretion by the Magistrate is arbitrary and not based on well recognised principles. What gives jurisdiction to the Magistrate to pass an order under Section 97 of the Code of Criminal Procedure is that he must be satisfied that there are reasons to believe that any person is confined under such circumstances that the confinement amounts to an offence. The belief must be based on certain definite facts. But at the same time it is not necessary that there should be a clear proof of the commission of the offence before issue of such a warrant and it would be quite sufficient that the materials placed before him would satisfy the Magistrate to issue a warrant as prayed for.

(Paras 6 and 7).

In the High Court of Karnataka

Revisional Criminal

(Before Nagappa, J.)

Sri Khamarulla Khan alias Ali Jan  Vs  Smt. Mujiba K. Khan 

Decided on February 6, 1980

Citation: 1980 SCC OnLine Kar 44

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Whether Magistrate can order to give custody of child to mother U/S 97 of CRPC?

 Now the question arose whether in the circumstances will it speak about wrongful confinement of child on the part of the petitioner? The answer will be “No”. The person who carried the child to the hospital to fulfil the wish of her wife on 25.01.2019 and while the child was wilfully left by the respondent/wife in the custody of the petitioner because of her ill health since 2017, such a contention raised by the respondent can in no way be stated as a confinement. The learned Additional District Magistrate although initially had issued search warrant treating the same to be wrongful confinement by its order dated 28.01.2019 but in the order dated 26.02.2019 as indicated above in paragraph 2 of the order has itself held that there can be no question of “wrongful confinement by the second party” but strangely the learned court treated the matter as if dealing with the custody of the child and gave the custody of the child to the respondent/wife which is beyond the jurisdiction of Section 97 of Cr.P.C The provision of custody of child can be decided under Section 25 of the Guardian and Wards Act and the same cannot be adjudicated in the petition under Section 97 of the code. The only question which is to be decided while passing any such order by a court that there was certain wrongful confinement of a person while initiating proceeding. As has been discussed above, no matter of wrongful confinement has been made out as against the petitioner, who is the natural guardian/father of the child.

11. The Section 6 of the Hindu Minority and Guardianship Act provides that the natural guardian of any minor is the father and after him the mother.

12. As a corollary of above discussion it can be found that the impugned order dated 26.02.2019 passed by the learned trial court is wholly without jurisdiction. On the other hand, the order of the revisional court is also bad in law while the court has observed that any minor girl cannot be kept in a place against her will and will amounts to wrongful confinement. However, if the parties file a case for custody of the child, then the question of taking opinion of the child will arise as to with whom preferred to live, whether in the custody of her father or mother and that provision is not applicable in a proceeding under Section 97 of Cr.P.C

13. From what has been discussed above and in the circumstance narrated in the petition and the reply of the present petitioner before the court below it emerges that the child of the parties was kept in the custody of the petitioner by his wife voluntarily for her health problem and the same cannot be now contended as wrongful confinement and both the orders of the trial court as well as revisional court is devoid of merit and liable to be interfered. Accordingly, the orders passed by the trial court as well as revisional court is hereby quashed and set aside. It is however, observed that the parties may prefer appropriate application before the appropriate forum for custody of the child in proper manner, if so advised and till then, it is expected that the petitioner will honour the sentiment of the mother/respondent to facilitate her visit to her child as per convenience of the parties.

In the High Court of Gauhati

(Before Rumi Kumari Phukan, J.)

Sanjeev Kumar Singh  v. O. Mema Devi

Crl. Pet. 626/2019

Decided on July 16, 2019

Citation: 2019 SCC OnLine Gau 2874

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Whether court can hand over custody of child to mother in proceeding U/S 97 of CRPC?

 Considering the principles laid down by Their Lordships of the Supreme Court and of various High Courts, there is no dispute that mother is entitled of the custody of the child below the age of 5 years, being a guardian. On 17-10-1989, the children were in the custody of the non-applicant No. 1 Smt. Warsha the mother, when she reached to her parents place for 3rd delivery. The children were taken away from her custody by the husband on the assurance of returning them to her custody. However, it is an admitted fact that the applicant No. 2 the husband of the non-applicant No. 1 Warsha instead of taking the children with him, he took them to his parents who are residing at Daryapur. The children were not returned to the custody of the non-applicant No. 1 Warsha and when her brother had gone to bring them back, he was driven out. Thus, the non-applicant No. 1 Warsha was prevented from love and affection of her children and also their custody. It has been brought to my notice that the non-applicants Nos. 2 and 3 are admitted in the school. It is an admitted fact that the non-applicant Nos. 2 and 3 were in the custody of their grand-parents. Considering the facts and circumstances, there is no doubt that the non-applicants Nos. 2 and 3 were confined. Therefore, the proceedings instituted under Section 97 of the Cr.P.C. were legal, just and proper.

Bombay High Court

Purushottam Wamanrao Thakur, And ... vs Warsha W/O Narendra Thakur And ... on 20 September, 1991

Equivalent citations: 1993 (3) BomCR 587, 1992 CriLJ 1688, II (1994) DMC 173

Bench: B Wahane

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Whether parents' possession of child amount to an offence or wrongful confinement?

 A reading of the above provision would manifest that jurisdiction of the Magistrate is attracted only when he has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence. Since parents' possession of the child cannot, under ordinary circumstances, amount to an offence or wrongful confinement, jurisdiction under Section 97 Cr.P.C. was not available to the Magistrate for exercising powers against the child. The Magistrate having summoned the minor has gone a step ahead to withdraw his custody from the company of his mother and then to handover to grandmother and uncle.

Equivalent Citation: 2015CriLJ3189

IN THE HIGH COURT OF CHHATTISGARH

WPC No. 2068 of 2014

Decided On: 24.03.2015

 Sonam Devi  Vs. State of Chhattisgarh

Coram:Prashant Kumar Mishra, J.

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Whether Magistrate can issue search warrant U/S 97 of crpc for production of child from custody of father?

Looking into the factual background of the case, I find that the petitioner/father removed the child from the custody of the O.P./mother by using physical-force and that the child was a suckling baby of a tender age of 18 1/2 months only. This act on the part of the father of placing the child beyond the reach of the mother, in such circumstances tantamount to confinement of the child giving rise to an offence. There is no scope for any controversy to accept the proposition that it is the subjective satisfaction of the Magistrate to invoke the power under Section 97 of the Court.

 It is needless to say that where the question of custody of the minor is involved the type of remedy proceeded with by an applicant whether by way of an application under the Guardians and Wards Act, or by way of an application under Section 97, Cr.P.C. or by way of a writ of habeas corpus is not relevant. In all such situations, the paramount consideration is the welfare of the minor. Therefore, when the petitioner/father had forcibly removed his child of 18 1/2 months from custody of his mother and the mother has filed application under Section 97 of the Criminal Procedure Code and the ingredients of such section were satisfied, the mother was entitled to the speedy remedy available to her under the law because of the tender age of the child and the exigency of the situation that demanded restoration of the custody of the child to the mother at the earliest possible moment. The mother cannot be denied relief in summary proceedings taken by her and it will be unjust and against the welfare of the child also to ask her to take recourse to the relevant provisions available under the Guardians and Wards Act. Therefore, it is apparent that the Learned Chief Judicial Magistrate rightly exercised jurisdiction vested upon him and no fault can be found with such orders passed by him.

In this context, I think it appropriate to mention that the Hon'ble Supreme Court in the case of Dr. Mrs. Veena Kapoor v. Varinder Kumar Kapoor, reported in MANU/SC/0314/1981 : AIR 1982 SC 792 : 1982 Cr LJ. 580 has held that -"It is well settled that in matters concerning the custody of minor children, the paramount consideration is the welfare of the minor and not the legal right of this or that particular party....."

IN THE HIGH COURT OF CALCUTTA

C.R.R. No. 2984 of 2014

Decided On: 20.01.2015

Appellants: Amber Majumdar
Vs.
Respondent: The State of West Bengal and Ors.

Hon'ble Judges/Coram:Shib Sadhan Sadhu, J.

 Citation: 2015CriLJ1510

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