R. J. SHAH, J. ( 1 ) THE present Special Criminal Application is directed against the order dated 21/11/1983 passed by the Additional Sessions Judge Bhavnagar in Criminal Revision Application No. 113 of 1973 allowing the said revision application which in turn was directed against the order dated 20/10/1983 passed by the Chief Judicial Magistrate Bhavnagar in Criminal Miscellaneous Application No. 383 of 1983 wherein the application for search warrant under sec. 97 of the Criminal Procedure Code was dismissed. ( 2 ) IN order to appreciate the rival contentions it is necessary to state a few facts in brief. Present petitioner Mayabhai has a daughter by name Vijuben. An agricultural labourer in his farm by name Dulabhai Amrabhai developed relations with the said Vijuben who is alleged to be a minor and kidnapped her from her fathers custody. The said Dhulabhai claims that he has married Vijuben and Vijuben also delivered a female child in the month of September 1983 Petitioner Mayabhai has filed a complaint before the police on or about 24/02/1983 at Bagdana being Crime Register No. 21 of 1983 under secs. 363 and 36 of Indian Penal Code. Pursuant to the said complaint the J. M. F. C. Mahuva ordered Vijuben to the custody of Tapibai Vikas Grih Bhavnagar on 6/10/1983. The said Dhulabhai presented the aforesaid Criminal Miscellaneous Application No 383 of 1983 under sec. 97 of the Criminal Procedures Code on or about 15/10/1983. The learned Chief Judicial Magistrate Bhavnagar was pleased to dismiss the said application. The learned Additional Sessions Judge as stated above was pleased to allow the revision application directed against it ordering as under:this revision application is allowed. Vijuben who is now staying in Tapibai Vikasgrih Bhavnagar under the orders of the Judicial Magistrate First Class Mahuva is now ordered to be set free and is permitted to go wherever she desires to go. Copy of this order be sent to the Superintendent of Tapibai Vikasgrih directing her to submit compliance of her setting free forthwith. Hence the present special criminal application. ( 3 ) AT the outset it is to be noted that no steps have been taken by the said Dhulabhai against the order of the Judicial Magistrate First Class Mahuva ordering Vijuben to the custody of the said Vikasgrih. In the nature of things the said order provided for interim custody pending the trial. ( 3 ) AT the outset it is to be noted that no steps have been taken by the said Dhulabhai against the order of the Judicial Magistrate First Class Mahuva ordering Vijuben to the custody of the said Vikasgrih. In the nature of things the said order provided for interim custody pending the trial. Despite the aforesaid Misc. Criminal Application No. 383 of 1983 was presented under sec. 97 of the Criminal Procedure Code for issuance of a search warrant ( 4 ) SEC. 97 of the Criminal Procedure Code 1973 provides as under:97 Search for persons wrongfully Confirmed. 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 ant 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. ( 5 ) THE confinement of Vijuben in the facts and circumstances of the present case cannot be regarded as amounting to an offence within the meaning of sec. 97 so that search warrant can be issued in the case. ( 6 ) APART from the aforesaid an order under sec. 97 of the Criminal Procedure Code has been held to be an interlocutory order in HARAKH SINGH V. LALMUNI KUER (1977 CRI. L. J. 723) by the Patna High Court. This was also a case where the opposite party was accused of having committed the offence of kidnapping. It was held that the final judgment would therefore be with regard to the question as to whether the petitioner and the other accused had committed the offence alleged that the search and the recovery was a matter incidental to the proceedings that the question of custody of the persons recovered also was obviously a matter which was incidental arising in the proceedings and that the Court had not the slightest doubt that the order passed on an application under sec. 97 regarding the custody of the persons found was an interlocutory order. The learned Additional Sessions Judge had therefore obviously erred in entertaining the revision application before him. 97 regarding the custody of the persons found was an interlocutory order. The learned Additional Sessions Judge had therefore obviously erred in entertaining the revision application before him. ( 7 ) IN this connection the learned Counsel for respondent No. 1 has urged that when a warrant is issued under the said sec. 97 it is an interlocutory order but when the same is not issued and the application is dismissed then the order cannot be regarded as an interlocutory order. Nothing has been pointed out by the learned Counsel for respondent No. 1 in this connection by way of authority supporting the said view. I see no justification in drawing such a distinction. The order remains interlocutory irrespective of the fact whether the search warrant is issued or refused since the search and the recovery is a matter incidental to the proceedings. ( 8 ) PERUSING the order of the learned Additional Sessions Judge it seems that he has attempted to appreciate the evidence regarding the age of Vijuben in the revision application before him. The trial pursuant to the complaint is yet to take place wherein one of the central questions would be regarding the age of Vijuben. Such an approach it would seem was totally unwarranted in such a revision application. The order in question therefore cannot be sustained on this score also. ( 9 ) THE learned Counsel for respondent No. 1 has also referred to BHOLANATH GOSWAMI V. THE COMMISSIONER OF POLICE AND OTHERS (A. I. R. 1955 NUC (CALCUTTA) 2918 ). It says that sec. 100 of the Criminal Procedure Code 1898 does not empower a Magistrate to order protective detention of a person recovered who is sui juris and who was not an accused and could not therefore be arrested and detained and who does not require protection. The full text of the said decision has not been made available. It does not seem that the said principle could be made applicable in a case such as the present when the fact situation is as stated above. A reference was also made on behalf of respondent No. 1 to a decision in the case of LALMANI DEVI V. THE STATE (A. I. R. 1957 PATNA 689 ). It does not seem that the said principle could be made applicable in a case such as the present when the fact situation is as stated above. A reference was also made on behalf of respondent No. 1 to a decision in the case of LALMANI DEVI V. THE STATE (A. I. R. 1957 PATNA 689 ). In this case upon a complaint in respect of an offence of kidnapping and abduction the sub-divisional Magistrate issued a distress warrant against the accused and a search warrant for the production of the kidnapped girl. When the accused was arrested the girl appeared before the Sessions Court and moved a bail application for the release of the accused on the allegation that she was 22 years of age and had married the accused. The accused was thereupon released on bail. But when the girl came out of the Sessions Court she was arrested and produced before the Sub Divisional Magistrate who remanded her to jail custody. Thereupon the girl moved an application under sec. 491 of the Criminal Procedure Code 1898 and Article 226 of the Constitution of India. In the meanwhile her statement had been recorded under sec. 164 and the report of her medical examination had also been submitted before the High Court. The report showed that she was above 18 years. In the above circumstances it was held that the Magistrate was not justified in ordering her detention in jail custody in violation of the fundamental right of personal liberty guaranteed to the petitioner under Article 21 of the Constitution. The fact-situation in the present case being different as stated above the said decision can be of little or no avail in the present case. ( 10 ) ONE more decision on which reliance is put on behalf of respondent No. 1 is the ease of LOKUMAL KISHINCHAND MANGHNANI AND OTHERS V. VIVEK ARYA AND ANOTHER (1972 CRI. L. J. 1564 ). Here the Magistrate passed an order under sec. 100 Cri. P. C. directing her detention in Rescue Home in order to have her free statement in the case in a complaint under sec. 342 Indian Penal Code by the husband against his wifes parents for wrongful confinement of his wife who was sui juris and denied her wrongful confinement and expressed her desire to go back to them. 100 Cri. P. C. directing her detention in Rescue Home in order to have her free statement in the case in a complaint under sec. 342 Indian Penal Code by the husband against his wifes parents for wrongful confinement of his wife who was sui juris and denied her wrongful confinement and expressed her desire to go back to them. It was held that the said section did not empower the Magistrate to order detention of a person who was sui juris if that person neither committed nor was he likely to commit an offence. The fact-situation in the present case is entirely different. In the order passed by the learned Chief Judicial Magistrate Bhavnagar it has been mentioned referring to the contentions raised on behalf of the State that the age of Bai Viju as per school leaving certificate was 14 years 7 months and 8 days at the time when the complaint was lodged by the father before the police that is to say on 24/02/1983. The said decision therefore can be of no assistance in the matter. ( 11 ) IN the aforesaid circumstances the order passed by the learned Additional Sessions Judge is patently illegal and cannot be allowed to stand. The Special Criminal Application is therefore allowed. The order dated 21/11/1983 passed by the Additional Sessions Judge Bhavnagar is hereby set aside. Rule is made absolute. Application allowed. .