JUDGMENT P.N. Harkauli, J. 1. THIS application for revision is directed against an order passed by the learned Judicial Magistrate I, Bulandshahr directing that Km. Rakesh and Km. Munni (applicants 3 and 4 in this revision) shall be restored to the custody of their father Hardas Singh, opposite party No. 1. 2. THE facts giving rise to this application so far as they are relevant for the purpose of this revision are as follows. Hardas Singh, opposite party No. 1, moved an application under Sections 97 and 98 CrPC. He alleged that Smt. Premwati (applicant No. 2 in this revision) was his wife and these two girls were born to Smt. Premwati from him. In the year 1970 Rohtash (applicant No. 1 in this revision) enticed away Smt. Premwati and she had been living with him since then. It was further alleged that Rohtash had also kidnapped his children including these two girls. So Hardas Singh prosecuted Rohtash under Sections 498 and 363 IPC. In that case Rohtash was convicted by the learned Magistrate and his appeal was dismissed by the learned Sessions Judge in 1976. It was further alleged that neither Rohtash nor Smt. Premwati had any affection for these two girls and that they wanted to earn money by disposing of these two girls in marriage for money or by making them lead an immoral life. Indeed, according to Hardas Singh, Rohtash had already started negotiating the sale of the girls. Accordingly, he prayed that police may be directed to produce these girls before the learned Magistrate and upon their production Km. Rakesh who was a major may be set at liberty and Km. Munni who was a minor may be given in his custody. 3. ON this application the learned Magistrate ordered warrants to issue for the production of the girls before him. 4. WHEN these two girls were produced before the learned Magistrate it appeared to him that Km. Rakesh also was a minor and not a major as alleged by Hardas Singh. Accordingly, he got Km. Rakesh medically examined and the medical report showed that she was a minor. 4. WHEN these two girls were produced before the learned Magistrate it appeared to him that Km. Rakesh also was a minor and not a major as alleged by Hardas Singh. Accordingly, he got Km. Rakesh medically examined and the medical report showed that she was a minor. When the girls were produced before the learned Magistrate some objections were filed on behalf of the applicants 1 to 4 in which it was disputed that Hardas Singh was the father of these girls and it was contended that he was not entitled to obtain custody of the girls. 5. LEARNED Magistrate after hearing both sides passed the impugned order directing that the two girls may be given in the custody of Hardas Singh. This is a short order and it will be useful to reporduce the relevant part thereof in extenso here. It runs as follows :- "Kurnari Rakesh aur Munni awayask hain. Dono ke legal guardian pita hone ke nate Hari Das hi hain. Mu. No. 384 san 74 Hardas prati Rohtash Ta. Fa. 19-4-76 me concurrent finding ho chuki hai ki Abhiyukta Rohtash ne wadi Hardas ki patni aur Awayask Bachhon ki lawful guardianship se Bhagaya. Atah Minors ko Man ke pas athwa Rohtash ke Sarakshan me chhodna upyukta ne hoga. Aisi dasha me adesh diya jata hai ki Kumari Rakesh wa Kumari Munni ko unke pita Hardas ke Sarakshan me dediya jaye." 6. I have heard learned counsel for the parties and 1 am of the opinion that this order of the learned Magistrate cannot be sustained. As already stated Hardas Singh moved an application under Sections 97 and 98 CrPC. Section 97 would apply only when a person is confined under such circumstances that the confinement amounts to an offence and Sec. 98 can come into play when a female child under the age of 18 years is abducted or unlawfully detained for any unlawful purpose. As already stated Hardas Singh moved an application under Sections 97 and 98 CrPC. Section 97 would apply only when a person is confined under such circumstances that the confinement amounts to an offence and Sec. 98 can come into play when a female child under the age of 18 years is abducted or unlawfully detained for any unlawful purpose. Now a perusal of the order of the learned Magistrate which has been quoted above will show that he has not recorded any finding to the effect that the girls were being confined in such circumstances that their confinement amounted to an offence or that they ware being unlawfully detained for any unlawful purpose and that he has directed the delivery of the two girls to the custody of Hardas Singh not on either of these two grounds but simply on the ground that in view of the decision of the trial and appellate courts in the case under Sections 363/494 IPC, it would not be proper to leave the minors in the custody of either their mother Smt. Premwati or of Rohtash. Thus the learned Magistrate passed the Impugned order not in exercise of the powers conferred on him by Section 97 and 98 CrPC but purported to exercise a jurisdiction which belongs to the civil courts under the Guardian and Wards Act. This is clearly unwarranted and contrary to law. 7. LEARNED counsel for opposite party No. 1 urged that opposite party No. 1 had filed an affidavit alleging that Rohtash wanted to earn money by selling the girls for marriage or by forcing them to lead immoral 'lives and that he had even negotiated for the sale of the girls at several places and so even if the learned Magistrate had failed to apply his mind to this and to record a finding on this point, the proper course would be to remand this case to the learned Magistrate with the direction that he should consider this point and record a finding thereon. 8. I have two difficulties in acceding to this contention. 8. I have two difficulties in acceding to this contention. In the first place it will be seen that the only allegation on this point is contained in paragraph 10 of the affidavit in which it is stated that Rohtash wants to earn money by selling the girls in marriage, that he had even entered into some negotiations about it and that it was possible that Rohtash might sell the girls in order that they may lead immoral life. So far as the latter allegation is concerned it is on the face of it merely a conjecture. The word "Mumkin hai" itself clearly indicates this. As for the former allegation it will be noticed that no specific instance or name of any particular person with whom any such negotiation might have taken place, has been mentioned in the affidavit. The last paragraph of the affidavit will show that the contents of paragraph 10 have been verified from personal knowledge. If Hardas Singh had personal knowledge about such negotiations it is only reasonable to expect that he would have mentioned some specific instance of negotiation and the name of any such person with whom any such negotiation took place. No such details are given. It is, therefore, difficult to attach any value to such a vague allegation. In this connection reference may be made to a case in Om Radha v. Emperor, AIR 1939 Sind 152, in which it was alleged that "there is fear that if the girls remain there (Om Mandli premises) they will be spoiled as they have been wrongly detained for wrongful purposes." This allegation was held to be insufficient to attract the application of Section 552 of the CrPC 1898, which was in the same terms as Section 98 Code of Criminal Procedure 1973. It was observed in that case as follows : "Where there is nothing to show that the detention of the girl is for unlawful purposes nor is it suggested by specific allegations how the detention is for illegal purposes but there is only a vague reference to the apprehension that the girl would be spoiled as she has been wrongly detained, the remedy of the guardian to demand custody of the girl is by an application under Section 25, Guardian and Wards Act." I am, therefore, of the opinion that the allegation contained in paragraph 10 of the affidavit is far too vague to deserve weight. In this connection it may also be pointed out that admittedly the girls are living with their mother Smt. Premwati. Prima facie it does not appear probable that the mother would sell her own daughters for such purposes. So also it is difficult to attach weight to this allegation. 9. IT appears me to be clear from the circumstances of the case that these proceedings have been started not for the purpose of freeing the minors from any unlawful detention for illegal purpose, but simply for the purpose of gaining custody of the minor girls who are at the moment living with their mother. The very fact that Hardas Singh made no effort to obtain custody of the children for six years, i.e. from the alleged enticement which took place in May 1970 upto June, 1976 when the application under consideration was made, leaves little room for doubt on this point. I am clearly of the opinion that Sections 97 and 98 of the CrPC cannot be used by one parent even if he is the legal guardian, to obtain the custody of his minor children from the other parent. The proper remedy in such a case is to proceed under the Guardian and Wards Act in which proceedings on all relevant matters, including the welfare of the minors will be considered. The summary jurisdiction conferred on the Magistrate under Section 98 CrPC can be exercised only in a clear cut case of wrongful detention of a minor for illegal purpose. The summary jurisdiction conferred on the Magistrate under Section 98 CrPC can be exercised only in a clear cut case of wrongful detention of a minor for illegal purpose. The learned Magistrate clearly exceeded his jurisdiction in passing the impugned order on the ground that it would not be proper in the circumstances of this case to leave the minors in the custody of their mother (Minors ko Man ke pas.........chhodna upyukta na hoga"). 10. FOR these reasons, I am of the opinion that the order passed by the learned Magistrate was not justified and is liable to be set aside. Accordingly, the application for revision is allowed and the order passed by the learned Magistrate is set aside. Revision allowed.