H. K. RATHOD, J. ( 1 ) HEARD learned advocate Mr. AR lakhia on behalf of petitioner, learned advocate Mr. D. M. Shah appearing for respondent and learned APP Mr. HM Jani appearing for State. ( 2 ) IN this petition, respondent Anitaben rajeshbhai Palanwadia filed application u/ s 97 of Cr. P. C. obtained search warrant to have custody of minor Anurag aged 4 years and Rahul aged two years from husband. The application is filed on 15/2/2008 before magistrate Court, Baroda. The Magistrate court has registered Criminal application no. 187/2008 and after considering provision of Section 97 and facts which are pointed out by respondents to Magistrate court that husband has deserted the wife and both minor children are with husband. The wife opponent on 14/2/2008 went to house of husband and request for custody of children but that was rejected. Therefore, application is filed before Magistrate. The say of respondent is that both minor children are in custody of husband and against their will both are illegally detained by husband in his house. The Magistrate court has considered application and understand real purpose to file such kind of application to have any search warrant u/s 97 of Cr. P. C. The Magistrate Court has rightly come to conclusion that who is required custody of minor children is to be decided by Civil Court and Magistrate court has no power to examine such issue. The Magistrate Court has also considered that whether mother or father who is entitled for custody of child is to be considered while keeping in mind welfare of such child otherwise individual may having right to have custody of children. Therefore, application is rejected by magistrate Court, Baroda on 19/2/2008 against which Revision application is filed u/s 397 of Cr. P. C. no. 75/2008. ( 3 ) THE Additional Session Judge, baroda has allowed Revision application setting aside order passed by Magistrate court and warrant u/s 97 has been issued by additional Session Judge. The Additional session Judge has given direction to issue search warrant as proposed by applicant and to proceed further with matter in accordance with law. ( 4 ) LEARNED advocate Mr. Lakhia appearing on behalf of petitioner submitted that Revisional Court has committed gross error in issuing warrant u/s 97 with further direction to proceed further with matter in accordance with law. ( 4 ) LEARNED advocate Mr. Lakhia appearing on behalf of petitioner submitted that Revisional Court has committed gross error in issuing warrant u/s 97 with further direction to proceed further with matter in accordance with law. He submitted that under section 97 power can not be exercised by Magistrate Court for giving custody either to mother or father ? The both children are minor and none of said that they illegally detained and there is no such purpose for father to detain both minor children illegally. The wife left house of husband asked for custody from husband which was refused i. e. now this being reaction of mother to file such proceeding before Magistrate Court. Therefore, he submitted that Revisional Court has committed gross error which require interference by this Court. ( 5 ) LEARNED advocate Mr. Shah supported order passed by Revisional Court and submitted that father illegally detained custody of both minor children and deserted mother at the time of demanding custody of children from father, on 14/2/2008 request made by mother has been rejected and no custody is given by father. Therefore, application was preferred before Magistrate court. Therefore, he submitted that revisional Court has rightly exercised power and in response to issue search warrant now respondent is able to get custody of minor children. For that, according to him, Revisional Court has not committed any error which would require interference by this Court. ( 6 ) I have considered submissions made by both learned advocates and I have also perused order passed by Magistrate Court as well as Revisional Court. The Revisional court has committed gross error in coming to conclusion that when husband and wife are disputing about custody of children and when they are minor. Court has to take extreme care in determining dispute, but rcvisional Court has committed error to extent that without considering whether court has jurisdiction or not? Deciding issue. The Revisional Court has further committed error that welfare of minor children would he safe in custody of mother, therefore. Court should take care (hat preferably mother should be allowed to retained custody. The said observations are also contrary to law because at the time of considering question of custody of minor children. Deciding issue. The Revisional Court has further committed error that welfare of minor children would he safe in custody of mother, therefore. Court should take care (hat preferably mother should be allowed to retained custody. The said observations are also contrary to law because at the time of considering question of custody of minor children. Court has to consider legal right of father and mother and important aspect is to welfare of child is to be considered at the time of such issue is to be examined by court. ( 7 ) THEREFORE, according lo my opinion. Revisional Court has committed gross error in allowing Revision application while setting aside order passed by Magistrate court and power has been exercised u/s 97 of Cr. P. C. to have custody by mother in light of such warrant is totally without jurisdiction. The purely Civil dispute converted in Criminal proceeding while cut short it and obtain order from Court. Such practice has been adopted by respondent may be based on some advice but legally that is not proper way to have custody of minor children from father. This being Civil dispute must have to be filed before Civil court having jurisdiction and Civil Court can consider it whether custody of minor child may be given to father or mother? this cut short method adopted by respondent is deprecated. ( 8 ) THE Section 97 of Cr. P. C. suggests as under: "search for persons worngfully confined: if any District Magistrate sub-divisional Magistrate or Magistrate of the first class has reason lo 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, if found, shall be immediately taken before a Magistrate, who shall make such order as in the circumstances of the case seems proper. ( 9 ) IN case of Gaurav Nagpal v. Sumedha Nagpal reported in 2009 (1) SCC 42 , Apex Court held that - Hindu Minority and Guardian ship Act, 1956 - Sec 13 and 6- thus in case of custody of minor children welfare of child is paramount consideration while determining issue relating to child custody and visitation right of either lather or mother. " the relevant observations made by apex Court is as under: "the principles in relation lo the custody of a minor child are well settled. The paramount consideration of the court in determining the question as to who should be given custody of a minor child, is the "welfare of the child" and not rights of the present under a statute for the lime being in force or what that parlies say. The court has to give due weightage to the child's ordinary contentment, health, education, intellectual development and favourable surroundings but over and above physical comforts, the moral and ethical values have also to be noted. They are equal if not more important than the others. Mature thinking is indeed necessary in such a situation, when the court is confronted with conflicting demands made by the parents, each time it has to justify the demands. The court has not only to look at the issue on legalistic basis. In such matters, human angles are also relevant for deciding the issues. The object and purpose of the 1890 Act is not merely physical custody of the minor but due to protection of the rights of ward's health, maintenance and education. The power and duty of the court under the Act is the welfare of minor. ;" (See: Ramesh v - Smt. Laxmi Bai reported in 1999 Cri. L. J. 5023 para 4 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, cr. P. C. in the established facts of the case is untenable. Section 97, Cr. P. C. prima facie is not attracted to the facts and circumstances of the case when the child was living his own father. Under the circumstances, we are of the opinion that the orders of the High Court dated 17' July, 1996 and that of the learned Additional sessions Judge dated 91" July, 1996 cannot he sustained and we accordingly set aside the orders of the directions given therein. Under the circumstances, we are of the opinion that the orders of the High Court dated 17' July, 1996 and that of the learned Additional sessions Judge dated 91" July, 1996 cannot he sustained and we accordingly set aside the orders of the directions given therein. " ( 10 ) IN light of this observations order passed by Re visional Court Additional session Judge in Cr. R. A. 75/2008 dated 18/9/2008 is hereby quash and set aside and rule is made absolute to that extent. (RRP) (Rule made absolute)