Judgment :- When a six year old muslim boy (by name' ainas') was with his mother, a petition was moved by the paternal grandfather of the child before a judicial magistrate of first class for an order under S.97 of the Code of Criminal Procedure (for short' the Code'). Learned magistrate directed the mother to produce the child in court .This petition is filed by the said mother in challenge of the magistrate's order. 2. Petitioner is the wife of one Moidu who is employed in a Gulf country. Ajinas was born to them. It was Moidu's father who filed the petition in the magistrate's court alleging that on 23-8-93 Ajinas' mother along with her people abducted the child while the child was returning from school and thereafter the child was being kept in wrongful custody without permitting him to go to school. Moidu's father claimed that Ajinas was in his custody till 23-8-1993 and the child was attending his school while residing in the house of- Moidu. The petition for a search warrant was filed by Moidu on the said allegations. Learned magistrate has thereupon passed the order directing the petitioner to produce Ajinas in court. 3. There is no dispute that Ajinas has not attained the age of seven. Under MohamedanLaw, mother is entitled to the custody of a male child till he attains the age of seven and of a female child till she attains puberty. (Vide Mulla's Principles of Mohamedan Law Sec.352). 4. Section 97 of the Code empowers a District Magistrate, a sub divisional magistrate or a magistrate of first class to issue a search warrant if he "has reason to believe that any person is confined under such circumstances that the confinement amounts to an offence". The said power has been conferred to meet an emergency. The expression "reason to believe" is the core of the provision and it obliges the magistrate to consider the facts averred in the application with great sense of responsibility. The magistrate cannot issue a search warrant merely because one person has applied for it, Reason to believe that some one is in wrongful confinement is sine qua non for issuing a warrant of arrest. Such reasons must be translated in writing in the record since power under S.97 of the Code can be exercised only in a judicial manner. The magistrate cannot issue a search warrant merely because one person has applied for it, Reason to believe that some one is in wrongful confinement is sine qua non for issuing a warrant of arrest. Such reasons must be translated in writing in the record since power under S.97 of the Code can be exercised only in a judicial manner. The magistrate must have reason to believe the existence of atleast two things: First is that a person is under confinement and the second is that such confinement amounts to an offence. Unless the magistrate has reasons to believe that a contingency has arisen in which the above two conditions exist he cannot issue a search warrant. Even though no formal enquiry need be conducted by the magistrate as matter of course he must certainly consider the allegations in the application objectively and come to a conclusion that the person (or child) was in wrongful confinement. 5. It is not in every case of confinement that the magistrate can issue warrant. Unless the confinement amounts to an offence the magistrate cannot issue warrant. Confinement by a person who is the authority to keep some one in his custody would not normally amount to wrongful confinement. When a person complains that a child is being wrongfully confined by its natural guardian, the magistrate shall not lightly issue a warrant under S.97 of the Code. Normally no child would be under wrongful confinement of its guardian. So, the magistrate has to be doubly circumspect in dealing with a petition which contains the allegation that the child is in wrongful confinement of its natural guardian. In such a situation it is advisable that the magistrate conducts an enquiry to satisfy himself whether the allegation is true before he decides to issue the warrant. There must be cogent reasons for the magistrate to believe that in such a situation confinement amounted to an offence. 6. In Khaligan v. Emperor (AIR 32) 1945 Oudh 170) Ghulam Hasan,J. (as he then was) observed while dealing with the corresponding provision in the Code of Criminal Procedure, 1898 that magistrate should adopt due caution and circumspection in taking action under the section when the allegation is that someone is wrongfully confined by a person who has lawful authority to have the custody and control of the former. In Harihar v. State of U.P. (1963 (2) Crl.L.J. 541) it has been pointed out by the Allahabad High Court that it is only wrongful confinement which is an offence and "confinement by a person who has the authority to keep in his custody the person confined cannot be said to be wrongful nor can that person be said to be acting wrongly." That was a case in which a petition was filed for a search warrant alleging that a husband was keeping his minor wife at his house against her wish. In banarsilalv.neelam (AIR 1969 Del. 304) Dua C.J. has observed that though the provision is one of emergency, it does not mean that a magistrate is to issue warrant of search automatically without applying his judicial mind to the allegations contained in the application. "This is a judicial duty and its performance rules out a superficial and arbitrary approach". In that case an application was filed alleging that the mother of a child was keeping it in wrongful confinement. It was held that the natural mother's custody of her child under five years of age could not be treated as suggesting an offence under any provisions of law. 7. The above decisions thus support the conclusion that no magistrate is to order lightly a search warrant against a natural guardian for producing his or her own little child. Even in very exceptional cases when the court feels that confinement of a little child by its own mother or father is not strictly in accordance with law, the more appropriate course to be suggested to the aggrieved party who moves the magistrate under S.97 of the Code, is to approach the civil court under the provisions of Guardian and Wards Act. 8. In this case the magistrate has issued the impugned order in haste. He did not take into account the fact that mother has the rightful custody of her child of that age. It is not spelt out in the petition as to how her custody of the child would amount to an offence. The paternal grandfather of the child has made a sweeping statement in the petition that mother of the child has wrongfully confined him. No reason is shown as to how the mother has committed any offence. In such circumstances no order should have been issued for production of the child in court. The paternal grandfather of the child has made a sweeping statement in the petition that mother of the child has wrongfully confined him. No reason is shown as to how the mother has committed any offence. In such circumstances no order should have been issued for production of the child in court. The child of that age must be presumed to have perched in its natural shelter and cradle - its mother's lap. For the aforesaid reasons, I quash the impugned order.