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Judgment
Goutam Bhaduri, J
Heard.
The instant petition is against the order dated 29.07.2017 passed by the Sub-Divisional Magistrate, Kharsia whereby a search warrant has been
issued against the petitioners to produce the minor child aged about 3 years before the Court of Sub Divisional Magistrate, Kharsia.
Learned counsel for the petitioners would submit that the application was filed under Section 97 & 98 of the Cr.P.C. and a prayer was made to give
the custody of the child to the respondents. He would further submit that such order which is passed by the SDM is without jurisdiction in exercise of
powers under Section 97 of the Cr.P.C.
Per contra learned counsel for the respondents oppose the same and submit that the order is well merited which do not call for any interference.
Section 97 of the Cr.P.C. reads as under:-
Search for persons wrongfully confined.- If any District Magistrate, Sub- divisional Magistrate or Magistrate of the first class has reason to
believe that any person is confined under such circumstances that the confinement amounts to an offence, he may issue a search- warrant, and the
person to whom such warrant is directed may search for the person so confined; and such search shall be made in accordance therewith, and the
person, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper.
Section 97 would show that when there is a reason to believe that a person is wrongfully confined and the confinement amounts to an offence, the
search warrant may be issued.
Perusal of the application filed under Section 97 Cr.P.C. would show that Babita Agrawal, the applicant therein was stated to be married to
Vasudev Agrawal and one document of Godnama is on record, which shows that the Vasudev Agrawal and Babita Agrawal have given their son to
Kapil Dev Agrawal and Smt. Neetu Agrawal, the petitioners herein. The said adoption deed as on date prima facie exists unless is annulled or proved
otherwise as nonexistent.
In view of the law laid down by the Supreme Court in the case of Ramesh Vs. Laxmi Bai (SMT) {(1998) 9 SCC 266} Section 97 in this case
cannot be pressed into motion as Section 97 speaks for forceful confinement of the person, which prima facie do not appear to be existing in this case
subject to the decision of merits on the adoption. In view of this, the order dated 29.07.2017 passed by the Sub-Divisional Magistrate, Kharsia, is set
aside. However, it is made clear that this Court has not expressed any opinion on the merits on custody of child and the petitioners shall be at liberty to
raise all the grounds in the properly constituted proceedings before the appropriate forum.
With such observation, the petition stands disposed of.