[S.97 CrPC] Father's Custody of Minor Child No Ground To Issue Search Warrant Unless Confinement Proven Illegal: J&K High Court

A bench comprising Justice Sanjay Dhar underscored,

“Unless it is shown from the material on record that confinement of a person is illegal in nature and it amounts to an offence, a Magistrate cannot exercise his powers under Section 97 of the Cr. P. C and issue a search warrant for production of such person”.

Background of the Case:

The case involved a dispute between a separated couple over the custody of their minor child. The mother, concerned about the child's well-being, applied Section 97 of the Cr. P. C., seeking a search warrant to produce the child, who was in the father's custody. The Magistrate granted the warrant, prompting the father to challenge it in the High Court.

The father, through his legal counsel, argued that Section 97 of the Cr. P. C. is not applicable in this case as his custody of the child cannot be construed as illegal confinement. He further contended that he, as the natural guardian, has the right to his child's custody.

Observations Of The Court:

After considering the rival contentions Justice Dhar deliberated on the provisions of Section 97 of the Cr. P. C, highlighting the necessity of establishing illegal confinement amounting to an offence before granting such warrants.

“Two things are essential before a Magistrate can issue a search warrant under Section 97 of Cr. P. C; one is that a person should be confined and second is that the confinement of such person should amount to an offence”, the bench underscored.

The court relied on "Ramesh vs. Laxmi Bai" (1998), where it was held that "Section 97 CrPC prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father."

Furthermore, the court referred to its own judgment in "Shameem Ahmad vs. Ashiya Begum" (2016), reiterating that the father of minor children having their custody cannot be per se said to be an offence for which powers under Section 100 of J&K Cr. P. C (which is in pari materia with Section 97 of the Central Cr. P. C) could be invoked.

Considering these observations and legal precedents, the High Court allowed the father's petition and set aside the Magistrate's order directing the production of the child. However, the court clarified that the mother still has the right to pursue the issue of permanent child custody through the appropriate legal channels under the Guardians and Wards Act.

Case Title: SHOWKAT AHMAD MIR Vs NIGHAT BEGUM

Citation: 2024 LiveLaw (JKL) 29

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