JUDGMENT : Kuldip Singh, J. 1. This is a petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. for quashing order dated 31.10.2011 passed by respondent No. 2 Sub Divisional Magistrate, Solan in case No. 394/2004 of 2011 and for quashing of entire proceedings of case No. 394/2004 of 2011 pending before respondent No. 2. 2. The facts, in brief, are that petitioner No. 1 and respondent No. 3 are husband and wife. The petitioner No. 2 is the father and petitioner No. 3 is the mother of petitioner No. 1. The petitioner No. 1 and respondent No. 3 got married on 8.10.2009. The further facts as narrated in the petition are that Master Karanvir Singh Thakur was born from the wedlock of petitioner No. 1 and respondent No. 3 on 9.6.2010 at Kamla Nehru Hospital, Shimla. The child from birth is looked after by the petitioner No. 3. 3. The respondent No. 3 after availing maternity leave left Shimla for Parwanoo alongwith petitioner No. 1 and the child in order to join her duties. The petitioner No. 3 stayed at Parwanoo to look after child as the respondent No. 3 was unable to look after the child being employed. 4. The petitioner No. 2 a heart patient had to live alone at Shimla and managed his affairs himself. This completely disturbed the life of petitioners No. 2 and 3. So petitioner No. 3 in November, 2010 decided to go back to Shimla as the petitioner No. 2 was not keeping good health. The respondent No. 3 requested petitioner No. 3 to take Master Karanvir Singh Thakur alongwith her on the plea that respondent No. 3 being a working woman will not be in a position to look after the child. The respondent No. 3 further told petitioner No. 3 that she and petitioner No. 1 will keep on visiting Shimla to meet the child. In these circumstances, since November, 2010, Master Karanvir Singh Thakur is living at Shimla with petitioners No. 2 and 3 and they are taking proper care of the child. 5. The respondent No. 3 on joining her duty at Parwanoo completely neglected the child which led to differences between husband and wife. In these circumstances, since November, 2010, Master Karanvir Singh Thakur is living at Shimla with petitioners No. 2 and 3 and they are taking proper care of the child. 5. The respondent No. 3 on joining her duty at Parwanoo completely neglected the child which led to differences between husband and wife. On several occasions petitioner No. 1 requested respondent No. 3 to quit the job for some time till the child is not in a position to go to crche. The respondent No. 3 turned down the request of petitioner No. 1 by stating that the petitioner No. 3 will take care of the child till the child is not in a position to go to the school. 6. The relationship between the petitioner No. 1 and respondent No. 3 deteriorated due to non-caring attitude of respondent No. 3 towards the child. The petitioner No. 1 and respondent No. 3 had been visiting Shimla to meet the child, which arrangement continued till March, 2011. The respondent No. 3 stopped visiting Shimla on every week end. The respondent No. 3 since June, 2011 completely stopped visiting Shimla. In the beginning of August, 2011 in the absence of petitioner No. 1, the respondent No. 3 packed her luggage and left the house without informing petitioner No. 1 and since then respondent No. 3 is residing at Dharampur with her relative. 7. On 12.9.2011 petitioner No. 2 received a call from Police Station, Chotta Shimla to visit the Police Station immediately alongwith petitioner No. 1 and petitioner No. 3. The petitioners visited said Police Station and found father and other relatives of respondent No. 3 in the Police Station. The S.H.O., Police Station, Chotta Shimla alongwith relatives of respondent No. 3 insisted upon the petitioners to hand over the custody of the child to respondent No. 3. The S.H.O., Police Station, Chotta Shimla even threatened to involve the petitioners in some false case u/s 498-A IPC. The petitioners declined to hand over the custody of the child to respondent No. 3. The S.H.O., Police Station, Chotta Shimla allowed the petitioners to go home. 8. On 17.9.2011 the petitioners were again asked to visit the Police Station, Chotta Shimla. On that date also, the S.H.O., Police Station, Chotta Shimla and relatives of respondent No. 3 put pressure on the petitioners to hand over the custody of the child to respondent No. 3. The S.H.O., Police Station, Chotta Shimla allowed the petitioners to go home. 8. On 17.9.2011 the petitioners were again asked to visit the Police Station, Chotta Shimla. On that date also, the S.H.O., Police Station, Chotta Shimla and relatives of respondent No. 3 put pressure on the petitioners to hand over the custody of the child to respondent No. 3. On 19.9.2011, three constables alongwith seven-eight relatives of respondent No. 3 visited the house of petitioners in order to take forcible custody of the child. The complaint to this effect was made to Superintendent of Police, Shimla about the conduct of police officials of Police Station, Chotta Shimla and Police Post, Lakkar Bazar. 9. It has been stated that both the parties were called by Women Cell, Shimla for conciliation but the matter could not be settled due to the attitude of the father of respondent No. 3. The respondent No. 3 through her relatives and police put pressure on the petitioners to hand over the custody of the child to her. The petitioners have committed no cognizable offence, the child was found in lawful custody, therefore, no case was registered against the petitioners. 10. It has been alleged that when petitioners did not succumb to the pressure of police at the instance of respondent No. 3 and her relatives, the respondent No. 3 and her father got a false case registered vide FIR No. 122 of 2011 at Police Station, Parwanoo under Sections 498-A, 506, 504 and 34 IPC on 5.10.2011. The respondent No. 3 and her father during the investigation of that case also put pressure on petitioners to hand over the custody of the child to respondent No. 3. A signed statement to this effect that petitioners will hand over the custody of child to respondent No. 3 on 28.10.2011 was also obtained under pressure. 11. It has further been stated that when petitioners did not hand over the custody of the child, the respondent No. 3 filed an application under Sections 97, 98 Cr.P.C. before the Sub Divisional Magistrate, Solan alleging that Master Karanvir Singh Thakur is in illegal custody and confinement of the petitioners and he may be got released from the custody of petitioners and the child may be handed over to respondent No. 3. 12. 12. On the complaint, the respondent No. 2 has passed the order dated 31.10.2011 authorising the SHO, Solan to search the child in the house of the petitioners at Shimla and produce the child before the Court on or before 5.11.2011. The order dated 31.10.2011 and the proceedings have been challenged on the grounds that the child is not in illegal custody. The petitioners have committed no offence and, therefore, respondent No. 2 has erred in exercising the jurisdiction under Sections 97, 98 Cr.P.C. Master Karanvir Singh Thakur is not in illegal confinement of petitioners. The child from the birth is being looked after by the petitioner No. 3 and other petitioners. 13. It has been stated that the respondent No. 3 in her complaint has nowhere stated that she had been looking after the child. Section 6 of the Hindu Minority and Guardianship Act, 1956 provides that father is the natural guardian. A child in the custody of natural guardian is in legal custody. The proceedings u/s 97 Cr.P.C. cannot be a recourse for the custody of the child. In the facts and circumstances of the present case, respondent No. 2 has no jurisdiction to entertain the complaint. The custody of the child with father is not illegal. 14. The respondent No. 1 has filed the reply and supported the order dated 31.10.2011 passed by respondent No. 2. It has been stated that the child was illegally taken away from the custody of respondent No. 3, therefore, order dated 31.10.2011 is legal and justified. FIR No. 122 of 2011 dated 5.10.2011 Police Station, Parwanoo is under investigation. It has been stated that petitioners made a complaint to Superintendent of Police, Shimla which was marked to Women Cell, Shimla, inquiry was held and it was found that all the allegations made in the complaint were false. 15. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the petitioners has submitted that petitioner No. 1 being the father and natural guardian of Master Karanvir Singh Thakur, has every right to keep the child with him. He has committed no offence if he has kept the child with him and, therefore, Section 97 Cr.P.C. is not applicable. The learned counsel for the petitioners has submitted that petitioner No. 1 being the father and natural guardian of Master Karanvir Singh Thakur, has every right to keep the child with him. He has committed no offence if he has kept the child with him and, therefore, Section 97 Cr.P.C. is not applicable. The respondent No. 2 has no jurisdiction to direct the petitioner No. 1 and petitioners No. 2 and 3 parents of petitioner No. 1 to produce Master Karanvir Singh Thakur before him, the impugned order dated 31.10.2011 is without jurisdiction and, therefore, order dated 31.10.2011 and proceedings are liable to be quashed. He has submitted that respondent No. 2 has no jurisdiction. The contentions of the learned counsel for the petitioners have been countered on behalf of the respondents. 16. There is no denial that Master Karanvir Singh Thakur was born on 9.6.2010. The copy of the complaint under Sections 97, 98 Cr.P.C. has been placed on record. In the complaint, it has been stated that petitioners No. 1 to 3 on 27.8.2011 took away the child from the care and custody of respondent No. 3. On 27.8.2011 Master Karanvir Singh Thakur was 1 year 2 months and 18 days old. Section 4(c) of the Hindu Minority & Guardianship Act, 1956 (for short Act) defines natural guardian: means any of the guardians mentioned in section 6. The Section 6 provides that natural guardians of a Hindu minor, in respect of the minors person as well as in respect of the minors property in the case of a boy, the father, and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. 17. The Section 97 Cr.P.C. provides that if any, District Magistrate, Sub Divisional Magistrate or Magistrate of the 1st 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. 18. 18. The words confines and offence are significant in Section 97 Cr.P.C. The words confine or confined have not been defined in Cr.P.C. The offence has been defined in Section 2(n) Cr.P.C: means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made u/s 20 of the Cattle Trespass Act, 1871 (1) of 1871. 19. The learned counsel for the petitioners has relied some judgments on the point. Yudhistir Mohanand vs. Dalimba Mohanand 1990 Cri.L.J. 1085 wherein it has been held that by retaining the custody of his own son the petitioner has not committed an offence such as illegal confinement, so that action under S. 97 of the Code was warranted. 20. In Anjali Anil Rangari vs. Anil Kripasagar Rangari, 1997 (10) SCC 342 , the facts were that Miss Yutika Rangari and Master Shankar Rangari were aged 9 and 5 years respectively. The Chief Judicial Magistrate, Nagpur on an application filed by Anil Kripa Sagar Rangari, father of minor children, u/s 97 of the Criminal Procedure Code on 10.3.1997 issued a warrant to produce the children before the Court in order to decide their future custody. The Chief Judicial Magistrate on 17.3.1997 passed the impugned order directing the custody of minor children be given to the father. The Supreme Court held that it cannot be disputed that the mother is also a natural guardian u/s 6 of the Hindu Minority and Guardianship Act, 1956. If it is so, could it be said that the custody of the two minor children with the mother was illegal and they were under her wrongful confinement. It was held that in the facts and circumstances of the case the custody of the children with the mother was not unlawful nor they were wrongfully confined by the mother at Delhi. 21. In Ramesh Vs. Laxmi Bai (Smt), (1998) 9 SCC 266 , the son of the parties was born on 26.2.1987 and was living with appellant. On 16.2.1995 the respondent sought search warrants u/s 97 of the Code. The Supreme Court held that Section 97 Cr.P.C. prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father. 22. On 16.2.1995 the respondent sought search warrants u/s 97 of the Code. The Supreme Court held that Section 97 Cr.P.C. prima facie is not attracted to the facts and circumstances of the case when the child was living with his own father. 22. In Mohinder Vir Singh and another vs. Deepa Singh and another Latest HLJ 2003 (HP) 829, it has been held that there is no allegation by respondent No. 1 that the confinement of petitioner No. 2 with petitioner No. 1 in any manner amounts to committing any offence. This apart, a son living with father especially in the circumstances mentioned by respondent No. 1 herself in the application cannot be said to give rise to a circumstance or situation where petitioner No. 1 can be said to have committed any offence. 23. The learned counsel for respondent No. 3 has relied Zahirul Hassan vs. State of Uttar Pradesh, 1988 Cri. L.J. 230 wherein it has been held that when a child aged 4 years was removed from custody of the muslim mother by the husband by applying physical force, the issuance of a search warrant at the instance of the mother was held to be justified. The removal of the child by using physical force from the custody of the mother is prima facie a wrongful act, moreso when the child is of a tender age of 1 years only. The act of the husband of placing the child beyond the reach of the mother in such circumstances amounts to wrongful confinement. 24. In Purushottam Wamanrao Thakur and others Vs. Warsha Thakur and others, (1992) CriLJ 1688, the facts were that on 17.10.1989 the children were in the custody of non-applicant No. 1 Smt. Warsha, mother. The children were taken away from her custody by husband on the assurance of returning them to her custody. The husband instead of taking the children with him, he took them to his parents who are residing at Daryapur. The children were not returned to the custody of the mother, Warsha. Mother Warsha was prevented from love and affection of her children and also their custody. The children were in the custody of their grand-parents. It was held that there was no dispute that children were confined and the proceedings initiated u/s 97 Cr.P.C. were legal, just and proper. 25. Mother Warsha was prevented from love and affection of her children and also their custody. The children were in the custody of their grand-parents. It was held that there was no dispute that children were confined and the proceedings initiated u/s 97 Cr.P.C. were legal, just and proper. 25. The respondent No. 3 in the complaint has not alleged that the removal of child from her custody by the petitioners on 27.8.2011 amounted some offence. It has also not been alleged in the complaint that the child Master Karanvir Singh Thakur is not under the care and custody of petitioner No. 1 father. There is no allegation in the complaint that Master Karanvir Singh Thakur has been forcibly removed by petitioner No. 1 from the custody of respondent No. 3. There is no allegation that petitioners are not allowing respondent No. 3 to visit the child. It has not been pointed out what offence petitioner No. 1 has committed, who is father of the child by keeping the child with him. 26. The Section 6 of the Act provides that father is the natural guardian of boy or unmarried girl and after father, mother is the natural guardian. The Section 6 further provides that custody of a minor who has not completed the age of 5 years, shall ordinarily be with the mother. The word ordinarily has its own significance. It does not mean that under no circumstance father cannot have custody of child under five years even in presence of mother. It appears from the petition that respondent No. 3 is a working woman. It has been stated in the petition that the child was born at Kamla Nehru Hospital, Shimla and since birth of the child he is being looked after by petitioner No. 3. The respondent No. 3 after availing maternity leave went to Parwanoo. The petitioner No. 3 also went to Parwanoo to help respondent No. 3 for bringing up the child. The petitioners have stated in the petition that petitioner No. 3 due to family circumstances had to come to Shimla in November, 2010 and at that time the respondent No. 3 requested the petitioner No. 3 to keep the child with her and since November, 2010 the child is with petitioners. The respondent No. 3 has joined her duties at Parwanoo. The respondent No. 3 has joined her duties at Parwanoo. The petitioners have taken the stand that it is not possible for respondent No. 3 to keep and bring up the child with her and in these circumstances keeping of the child with petitioner No. 1 with the help of petitioners No. 2 and 3 is no offence. 27. It appears there is some dispute between petitioner No. 1 and respondent No. 3 regarding their matrimonial tie. An FIR No. 122 of 2011 has been registered at Police Station, Parwanoo under Sections 498-A, 506, 504 and 34 IPC on 5.10.2011 at the instance of respondent No. 3 and the petitioners have obtained bail in that FIR. Master Karanvir Singh Thakur even now is about 1 year 7 months old. The respondent No. 3 according to the petitioners is a working woman. It is not possible for her to bring up the child all alone. The child is living with the petitioners since November, 2010. The respondent No. 3 has alleged that the child has been taken away from her custody by the petitioners on 27.8.2011. There are allegations and counter-allegations but the fact remains that the child is of tender age and he is living with petitioners, it can be safely assumed that he is settled with the petitioners. The frequent shifting of the child is likely to disturb him and affect his psyche. The respondent No. 3 prima facie has not established that petitioner No. 1 has committed some offence by keeping the child with him by taking help of petitioners No. 2 and 3 grand-parents of the child for bringing up the child. Zahirul Hassan (supra) is not applicable, in that case Section 6 of the Act was not applicable. In Purushottam Wamanrao Thakur (supra) the children were removed from the custody of the mother and were living with the grand-parents, therefore, Purushottam Wamanrao Thakur (supra) is also not applicable in the present case. 28. On the contrary in Ramesh (supra) the Supreme Court has held that Section 97 Cr.P.C. prima-facie is not attracted in the facts and circumstances of the case when the child was living with his own father. 28. On the contrary in Ramesh (supra) the Supreme Court has held that Section 97 Cr.P.C. prima-facie is not attracted in the facts and circumstances of the case when the child was living with his own father. In Mohinder Vir Singh and another (supra) where there was no allegation that confinement of the son in any manner amounts to committing any offence when the son was living with the father, it was held that the father has committed no offence. In the present case also in the facts and circumstances of the case it is not possible to record a finding that petitioner No. 1 has committed some offence when he has kept his own son with him and he is bringing up the son with the help of grand-parents of the child. The proceedings u/s 97 Cr.P.C. are of summary nature. The respondent No. 3 is at liberty to file appropriate proceedings in the competent court for custody of the child Master Karanvir Singh Thakur. In case such proceedings are filed by respondent No. 3 then those proceedings will be decided on merits in accordance with law and observations made in this judgment shall have no bearing on such proceedings. 29. In view of above discussion, the petition is allowed and order dated 31.10.2011 passed by respondent No. 2 Sub Divisional Magistrate, Solan is set aside and case No. 394/2004 of 2011 pending before respondent No. 2 is also quashed. Cr.M.P. No. 854 of 2011 In view of disposal of the main petition, this application is also disposed of.