R.J.SHAH - (1.)The present Special Criminal Application is directed against the order dated 21/11/1983 passed by the Additional Sessions Judge Bhavnagar in Criminal Revision Application No. 113 of 1973 allowing the said revision application which in turn was directed against the order dated 20/10/1983 passed by the Chief Judicial Magistrate Bhavnagar in Criminal Miscellaneous Application No. 383 of 1983 wherein the application for search warrant under sec. 97 of the Criminal Procedure Code was dismissed.
(2.)In order to appreciate the rival contentions it is necessary to state a few facts in brief. Present petitioner Mayabhai has a daughter by name Vijuben. An agricultural labourer in his farm by name Dulabhai Amrabhai developed relations with the said Vijuben who is alleged to be a minor and kidnapped her from her fathers custody. The said Dhulabhai claims that he has married Vijuben and Vijuben also delivered a female child in the month of September 1983 Petitioner Mayabhai has filed a complaint before the police on or about 24/02/1983 at Bagdana being Crime Register No. 21 of 1983 under secs. 363 and 36 of Indian Penal Code. Pursuant to the said complaint the J. M. F. C. Mahuva ordered Vijuben to the custody of Tapibai Vikas Grih Bhavnagar on 6/10/1983. The said Dhulabhai presented the aforesaid Criminal Miscellaneous Application No 383 of 1983 under sec. 97 of the Criminal Procedures Code on or about 15/10/1983. The learned Chief Judicial Magistrate Bhavnagar was pleased to dismiss the said application. The learned Additional Sessions Judge as stated above was pleased to allow the revision application directed against it ordering as under:
This revision application is allowed. Vijuben who is now staying in Tapibai Vikasgrih Bhavnagar under the orders of the Judicial Magistrate First Class Mahuva is now ordered to be set free and is permitted to go wherever she desires to go. Copy of this order be sent to the Superintendent of Tapibai Vikasgrih directing her to submit compliance of her setting free forthwith. Hence the present special criminal application.

(3.)At the outset it is to be noted that no steps have been taken by the said Dhulabhai against the order of the Judicial Magistrate First Class Mahuva ordering Vijuben to the custody of the said Vikasgrih. In the nature of things the said order provided for interim custody pending the trial. Despite the aforesaid Misc. Criminal Application No. 383 of 1983 was presented under sec. 97 of the Criminal Procedure Code for issuance of a search warrant