sec. 97 Cr.P.C.
basab banerjee
(Querist) 05 July 2011
This query is : Resolved
a mother of a child below 5 years of age applied before the SD.E.M. under sec. 97 Cr.P.C. to issue search warrant for her child who is under the custody of the grand mother (mother of the father of the child). The father of the child has expired and the mother has remarried. does this custody amounts to wrongful confinement? can the SD.E.M. issue search warrant in this case and issue direction to produce the child before the competent magistrate who shall make such order as the circumstances of the case seems proper?
SAANJAAY GUPTAA
(Expert) 06 July 2011
you have not mentioned in the quiry since when the child was in custodu of the grand parents and when his father died and when her mother remarried, in my opinion this is not a case of wrongful confinement and if mother needs custody of the child she has to file case for the custody of the child before the proper court and not before the criminal court.
prashant pundhir
(Expert) 06 July 2011
First the magistrate will get satisfied that the custody is with wrongful confinement or not and only after that,he will issue the warrant u/s 97 cr.p.c.
For proving the custody with wrongful confinement,you need to come into the proper court and file the suit .
Ravikant Soni
(Expert) 06 July 2011
Such confinement must amount to an offence, then only such warrant can be issued.
Contemplated study of 97 :
"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.."
In instant case the child is under custody of his grand father and it seems he was not abducted of confined unlawfully. Hence your case does not falls under ambit of section 97 Cr.P.C.
I suggest you to follow as advised by Pundhir sir. File a suit for custody in proper court.
