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In support of his contention, learned counsel for the petitioner has placed reliance on the judgment in the matter of Lalit Parkash Sharma Vs. State of Haryana and another in CWP No.739 of 2015 decided on 22.12.2012 by this Court. The relevant extract of the said order reads thus:-

"20. The child was below 5 years old. The couple were living together in a tenanted premises. A dispute arose and the wife called up her father who brought the police to their doorstep. The wife alleges that the husband did not allow her to take the child away. She also urges that the husband had played fraud and had taken child from the hospital to another doctor. The basic ingredient to attract Section 97 Cr.P.C. is that the child is confined under such circumstances, that confinement amounts to an offence. By no stretch of imagination, custody of the child with the real father by itself would amount to an offence. Something more has to be alleged and established to support that position. The revisional Court could not have exercised the revisional powers. Even hard cases cannot persuade a Court to ignore the legal principles and it is in these circumstances, it is held that the wife can not seek relief from criminal Court by invoking the powers under Section 97 Cr.P.C., therefore, the order passed by the Additional Sessions Judge cannot be sustained. There was no need to even remit 5 of 29 Neutral Citation No:=2024:PHHC:022593 CWP-24956-2023 (O&M). -6- 2024:PHHC:022593 the matter back to the Magistrate or give directions. The impugned order is set aside. It is clarified that nothing said herein before this Court shall be construed as an expression of opinion on the merits of the controversy regarding the custody of the child which is now pending adjudication before the competent Court having jurisdiction. That 10 of 11 case would be decided on its own merits uninfluenced by the order made here."

Reference is also made to the judgment in the matter of Ramesh Vs. Smt. Laxmi Bai, reported as 1998 (9) SCC 266, wherein it was held that proceedings under Section 97 Cr.P.C., would not be attracted when a child is living with his father. The relevant extract of the same reads as under:-

"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 CrPC in the established facts of the case is untenable. Section 97 CrPC 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 17-7-1996 and that of the learned Additional Sessions Judge dated 9-7-1996 cannot be sustained and we accordingly set aside the orders and the directions given therein."

7 of 29 Neutral Citation No:=2024:PHHC:022593 CWP-24956-2023 (O&M). -8- 2024:PHHC:022593 the custody of child with the respondent cannot be said to be illegal."

Reliance is also placed on the judgment in the matter of Zahirul Hassan Vs. State of U.P., reported as 1988 (2) HLR 471, as per which the proceedings under Section 97 Cr.P.C. can be held maintainable, where father forcibly removes the child from custody of the mother as well as on the judgment of Prakash Singh Vs. State of Jharkhand and another, reported as 2012 (23) RCR (Crl.) 152, in relation to the maintainability of proceedings under Section 97 Cr.P.C. He contends that the proceedings would be maintainable since it was a case of child being deliberately taken away from the mother.

(iii) The circumstances under which a person is confined amount to an offence;

(iv) The Magistrate may then direct a person to search for the person confined and to be brought before him; and

(v) The Magistrate may thereafter pass such orders as seem proper in the circumstances of the case.

Before invoking the powers under Section 97 Cr.P.C. the ingredients ought to be satisfied and it needs to be determined as to whether the child has been illegally confined and as to whether such a confinement would amount to commission of an offence. In the absence of any such satisfaction, the exercise of jurisdiction under Section 97 Cr.P.C. would not be proper.