ORDER : Dipak Misra, J. 1. Invoking the revisional jurisdiction of this Court the wife-petitioner has assailed the order dated 4-3-1997 passed in Criminal Revision No. 227/1996 by the First Additional Sessions Judge, Raigarh whereby he has reversed the order dated 5-11-1996 passed in Criminal Case No. 53/1996 by the Chief Judicial Magistrate, Raigarh wherein he had entertained the prayer of the petitioner and directed that the custody of the minor daughter should be given to her till a decision is given by the Court of competent jurisdiction regarding such custody. The facts as have been depicted in the petition are that the marriage of the petitioner and the non-applicant No. 1 was solemnised at Raigarh on 27-1-1993 as per Hindu rites and in their Wedlock a daughter was born on 26-11-1993. She was named Payal. The brother of the petitioner, Kishore Kumar was married to the sister of non-applicant No. 1. After the marriage the non-applicant No. 1 and his family members treated the applicant with cruelty and on 27-5-1997 the applicant was sent to her parental house. The non-applicant retained ornaments which belonged to the applicant. It is also alleged that a sum of Rs. 40,000/- was demanded from her parents for purchase of a coloured Television and construction of the house. Under compelling circumstances the applicant filed an application under section 125 of the Code of Criminal Procedure (in short 'the Code') before the Chief Judicial Magistrate, Raigarh which was registered as MCRC No. 26/1994. The said Court on consideration of material on record awarded a sum of Rs. 500/- to the applicant towards her monthly maintenance. To avoid the maintenance the husband entered into a compromise on the basis of which the applicant went to her husband's house to stay with him. She was again subjected to cruelty. She made a request to her sister-in-law that she and her daughter, Payal should be allowed to be sent to her parental home but her sister-in-law and husband forcibly separated the daughter from her and sent her alone to Raigarh where on 13-8-1996 she reported the matter to the police. The S.H.O. of Police Station, Shakti was requested to give her the custody of the minor child but no action was taken by the said authority. The S.H.O. of Police Station, Shakti was requested to give her the custody of the minor child but no action was taken by the said authority. As the petitioner was apprehensive about the safety of the minor child she filed an application for issuance of search-warrant and handing over the custody of the daughter to her. The application was described to be one under section 98 of the Code. On the basis of the aforesaid application the Chief Judicial Magistrate, Raigarh issued a search warrant and accordingly the non-applicant No. 1 along with the minor daughter was produced by the police in the Court of the Chief Judicial Magistrate. Learned Chief Judicial Magistrate by order dated 5-11-1996 allowed the application and directed the minor child to be given in custody to the applicant, till a decision was given by the Court of a competent jurisdiction. The propriety of the aforesaid order was called in question by the husband/non-applicant No. 1 in the Court of Session in a criminal revision. It was contended before the revisional Court that the application of the applicant preferred before the Sub-Divisional Magistrate, Shakti was earlier rejected as not maintainable but the said fact was not mentioned in the application and suppressing the relevant fact a prayer was made for issuance of a search warrant which was allowed. It was also contended that the Court below could not have passed the order as the whole proceeding was without jurisdiction. On consideration of the submission made on behalf of the non-applicant the revisional Court set aside the order passed by the learned Chief Judicial Magistrate and directed that the minor child should be returned to the husband. While giving such direction the First Additional Sessions Judge, Raigarh who disposed of the revision also observed that it was open to the present petitioner to file a proper application before the competent Court for guardianship of the minor child. The said order is the cause of grievance of the present revisionist. 2. I have heard Mr. Prashant Mishra, learned counsel for the petitioner and Mr. Vishnu Koshta, learned counsel for the non-applicant No. 1. It is submitted by the learned counsel for the petitioner that in the given circumstances the order passed by the Chief Judicial Magistrate, Raigarh was justified and there was no reason for interference with the order by the revisional Court. Prashant Mishra, learned counsel for the petitioner and Mr. Vishnu Koshta, learned counsel for the non-applicant No. 1. It is submitted by the learned counsel for the petitioner that in the given circumstances the order passed by the Chief Judicial Magistrate, Raigarh was justified and there was no reason for interference with the order by the revisional Court. It is also contended by him that the issuance of search warrant was under section 97 of the Code and such an application is maintainable in law. In support of the aforesaid contention he has placed reliance on the decision rendered in the case of Zahirul Hassan vs. State of Uttar Pradesh, 1988 Cri.L.J. 230. Mr. Koshta, learned counsel for the non-applicant No. 1 has urged with vehemence that the present petitioner had not approached the Court with clean hands as she had suppressed material facts and, therefore, the revisional Court was justified in setting the order of the Court below. It is further canvassed by him that in any view of the matter the application under section 97 of the Code was not maintainable inasmuch as the non-applicant had not committed any offence to attract the exercise of jurisdiction under the aforesaid provision. 3. Before I advert to deal with the rival contentions raised at the Bar, it is essential to state here that though the application was filed under section 98 of the Code the learned Chief Judicial Magistrate has exercised jurisdiction under section 97 of the Code and this fact is not disputed by the learned Counsel for the petitioner. Thus, sole question that arises for consideration, whether such an application in the obtaining factual matrix, was tenable or not. In this context, I may refer to section 97 of the Code which reads as follows: 97. 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, and 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. On a bare reading of the aforesaid provision it becomes crystal clear that a Magistrate while taking recourse to the aforesaid provision is required to satisfy himself that a person has been confined; circumstances of the confinement are of such nature that it can be construed that an offence has been committed; and the Magistrate must have reasons to believe that the nature of confinement amounts to an offence. These are the requisite preconditions before exercise of jurisdiction under section 97 of the Code. Unless the confinement amounts to an offence issuance of a search-warrant under the aforesaid provision is without jurisdiction. In the case of Yudhistir Mohanand vs. Dalimba Mohanand, 1990 Cri.L.J. 1085, while dealing with the scope of section 97 of the Code it has been laid down as under:-- 6. According to the provisions of section 97 of the Code, a search warrant cannot be issued automatically without application of judicial mind to the allegations made in the application. The expression 'reason to believe' implies a belief in judicial mind arrived at after consideration of the available materials without ignoring as far as possible to other side of the controversy. Before issuing a warrant for search, the Magistrate must have reasonable grounds to believe that the confinement in question is such that it amounts to an offence. The Magistrate should, therefore, exercise due caution and circumspection in issuing a warrant under section 97 of the Code. In the aforesaid case a reference was made to the judgment rendered in the case of K. Sarasu vs. Sengodan, 1981 Cri.L.J. NOC 113 (Mad) wherein Ratnavel Pandian, J. (as his Lordship then was) has held that if the father takes away his child, below five years of age from the custody of its mother he does not thereby commit an offence as he is the natural guardian and the matter has to be decided in a Civil Court and cannot be gone into in a proceeding under section 97 of the Code. Similar view was expressed in the case of Banarasi Lal vs. Smt. Neelam and others, AIR 1969 Delhi 304. Similar view was expressed in the case of Banarasi Lal vs. Smt. Neelam and others, AIR 1969 Delhi 304. In the case of Duryodhan Mahanta vs. Saraswati Mahanta, 1992 Cri.L.J. 2231 while dealing with the issuance of a search-warrant issued at the instance of mother for custody of the child under five years the Court held that such direction was not contemplated in terms of section 97 of the Code. Recently, in the case of Ramesh vs. Smt. Laxmi Bai, Criminal Appeal No. 787 of 1997 the Apex Court laid down as follows:-- From a perusal of the impugned order of the High Court, it appears to us that though the points which should weigh with a Court while determining the question of grant of custody of a minor child have been correctly detailed, the opinion of the High Court that the revisional Court could have passed an order of custody in a petition seeking search warrants under section 97, Criminal Procedure Code in the established facts of the case, is untenable. Section 97, Criminal Procedure Code prima facie, is not attracted to the facts and circumstances of the case when the child was living with his own father. Under the circumstances, we are of the opinion that the orders of the High Court dated 17th July, 1996 and that of the learned Additional Sessions Judge dated 9th July, 1996 cannot be sustained and we accordingly set aside the orders and the directions given therein. 4. In view of the law laid down in the aforesaid decisions, I am of the considered view that in exercise of power under section 97 of the Code, a Magistrate cannot issue a direction for production of the child from the custody of the father and direct that the child shall be in the custody of the mother because the custody of the child with the father does not amount to wrongful confinement and thereby no offence is committed attracting the provision of section 97 of the Code. Any of the parents can take recourse to the provisions under the Hindu Minority and Guardianship Act, 1956 for appointment of a guardian of the child but it is not open to any one of them to take recourse to section 97 of the Code. 5. Any of the parents can take recourse to the provisions under the Hindu Minority and Guardianship Act, 1956 for appointment of a guardian of the child but it is not open to any one of them to take recourse to section 97 of the Code. 5. As I have already held that the application was not maintainable under section 97 of the Code before the Court of first instance, I do not find any reason to interfere with the order passed by the revisional Court. Resultantly, the revision is dismissed.