Case Note & Summary
The applicant, Vishal Jivan Jogure, husband of respondent No.1 Megha Vishal Jogure, challenged an order dated 23rd February 2005 passed by the Chief Judicial Magistrate, Solapur, which directed issuance of a search warrant for the two children, Yash (born 16th October 1999) and Veerja (born 16th November 2001), who were in the custody of the applicant-father. The respondent No.1 had left the matrimonial home due to alleged improper behaviour of the applicant and filed an application before the Magistrate asserting that she was the natural guardian of the children and apprehended harm to them. The Magistrate allowed the application and issued search warrants under Section 97 of the Code of Criminal Procedure, 1973. The applicant contended that the Magistrate had no jurisdiction to issue such a warrant as the children were not wrongfully confined but were in the lawful custody of their father. The High Court examined the scope of Section 97 CrPC and held that the provision is intended for cases where a person is wrongfully confined, not for resolving custody disputes between parents. The court noted that the mother had alternative remedies under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. The court quashed the impugned order, holding that the Magistrate exceeded his jurisdiction.
Headnote
A) Criminal Procedure Code - Search Warrant - Section 97 CrPC - Wrongful Confinement - Magistrate's power under Section 97 CrPC is confined to cases where a person is wrongfully confined, not for resolving custody disputes between parents - Held that the mother had alternative remedy under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956 - Search warrant quashed (Paras 1-5).
Issue of Consideration
Whether a Magistrate can issue a search warrant under Section 97 of the Code of Criminal Procedure, 1973 for production of children in a custody dispute between parents.
Final Decision
Application allowed. Impugned order dated 23rd February 2005 passed by Chief Judicial Magistrate, Solapur, quashed and set aside. Rule made absolute.
Law Points
- Magistrate's power under Section 97 CrPC is limited to cases where person is wrongfully confined
- not for custody disputes
- Alternative remedy under Guardians and Wards Act
- 1890
- Natural guardian rights under Hindu Minority and Guardianship Act
- 1956
Case Details
2005 LawText (BOM) (04) 88
Criminal Application No.1488 of 2005
Mr. D.V. Kedar i/by Mr. G.V. Bhagat for the Applicant, Mr. Tejas Deshmukh for Respondent No.1, Mr. A.S. Gadkari, A.P.P. for Respondent No.2
Smt. Megha Vishal Jogure and another
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Nature of Litigation
Criminal application challenging order of Chief Judicial Magistrate issuing search warrant for children in custody of father.
Remedy Sought
Quashing of order dated 23rd February 2005 directing issuance of search warrant for two children.
Filing Reason
Applicant-father contended that Magistrate had no jurisdiction to issue search warrant under Section 97 CrPC as children were not wrongfully confined.
Previous Decisions
Chief Judicial Magistrate, Solapur, by order dated 23rd February 2005, allowed application of respondent No.1 and directed issuance of search warrant for children.
Issues
Whether a Magistrate can issue a search warrant under Section 97 CrPC for production of children in a custody dispute between parents.
Submissions/Arguments
Applicant argued that children were in lawful custody of father and not wrongfully confined, so Section 97 CrPC not attracted.
Respondent No.1 argued that she is natural guardian and apprehended harm to children.
Ratio Decidendi
The power under Section 97 CrPC is confined to cases where a person is wrongfully confined, and cannot be used to resolve custody disputes between parents. The mother had alternative remedy under the Guardians and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956.
Judgment Excerpts
This application takes exception to the order passed by the Chief Judicial Magistrate, Solapur, dated 23rd February 2005 on application, Exhibit 6 and Exhibit 1, preferred by the Respondent No.1, whereby directed issuance of search warrant for search of the two children, who are in custody of the Applicant, being their father.
Procedural History
Respondent No.1 filed application before Chief Judicial Magistrate, Solapur, for search warrant for children. Magistrate allowed application on 23rd February 2005. Applicant challenged order in High Court of Bombay by Criminal Application No.1488 of 2005. High Court heard and disposed of application on 29th April 2005.
Acts & Sections
- Code of Criminal Procedure, 1973: Section 97
- Guardians and Wards Act, 1890:
- Hindu Minority and Guardianship Act, 1956:
