Arpita Chauhan 24 May 2021
The Section 97 of the Code of Criminal Procedure deals with search for persons who are wrongfully confined and the power of the magistrate to issue a search warrant for such person.
Now, the very first question that comes here is that, Is your son wrongfully confined by your wife?
Secondly, it might be possible that there will be a slight delay in your case right now keeping in mind the current circumstances of COVID-19 in India.
It would be best if you follow your lawyers advice and take the course of action accordingly.
Dr J C Vashista (Advocate) 24 May 2021
I agree with the opinion and advise of expert Ms. Arpita Chauhan.
In fact your son can not be termed to have been illegally confined to attract the provisions of Section 97 Cr PC. Since the boy is stated to have been residing with his mother hence no search warrants can be issued by any Court / authorities and the lawyer who has stated to have advised you has misinterpreted the law.
Due to pandemic conditions prevailing throughout the country, accordingly only most urgent cases are being taken up by the courts.
G.L.N. Prasad (Retired employee.) 24 May 2021
Have you got any other options known to you ? or not trusting the advocate ?. If you have such doubts about the competency of any person even before entrusting the case, explore all options on your own for a better solution. A mother can keep her children and the father knows the fact that children are staying with their mother during the pandemic situations. Where is the illegal confinement or 'kidnap"
P. Venu (Advocate) 24 May 2021
Facts suggest dispute among the husband and wife as to the custody of the child. Remedy lies in approaching the Family Court.
T. Kalaiselvan, Advocate (Advocate) 24 May 2021
Section 97 is search for persons wrongfully confined;
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.
in an application for Search Warrant under Section 97 Cr.P.C., the Magistrate is required to satisfy himself that there exists material to hold the belief that confinement of a person in the circumstances can be said to be an offence. In other words, if such confinement is not an offence, then section 97 CR.P.C, would not be attracted. In order to attract Section 97, the Magistrate has to have reason to believe and secondly, such person should be placed in wrongful confinement .
generally speaking, in case of natural guardian section 97 Cr.P.C., would not be attracted.
You can refer to Gujarat high court judgment in Vinodbhai Dhudabhai Bhagora vs Kadiben on 10 April, 2013, which clearly states that an application under section 97 cr.p.c. will not be maintainable in the given situation, hence you may not waste time by filing the petition under non maintainable provisions of law, instead you can file a petition under guardians and wards act for child custody which may fetch you the desired result if you have merits in your side.