Forcefully Taking Child By Showing Revolver Amounts To Confinement: Bombay High Court Upholds Search Warrant Under Section 100 BNSS

"The Respondent forcefully took away the child from the custody of the mother by showing the revolver and confined him at another place. Thus, the impugned order... passed by completely ignoring the said aspects is perverse and illegal." Bombay High Court, in a significant ruling, held that a father forcefully taking a minor child away from the mother at gunpoint constitutes confinement, justifying the issuance of a search warrant under Section 100 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS).

A single-judge bench of Justice Madhav J. Jamdar quashed a revisional court's order that had erroneously ruled that a child staying with either spouse does not amount to confinement, terming the lower court's approach as "perverse and illegal."

The dispute arose when the respondent-husband allegedly took away his two-and-a-half-year-old son from the petitioner-wife's custody at gunpoint. Acting on the wife's plea, a Magistrate in Malegaon issued a search warrant under Section 100 of the BNSS, leading to the child's recovery and the restoration of custody to the mother. However, an Additional Sessions Judge later reversed this order, directing the mother to return the child to the husband and file a fresh custody application, prompting her to approach the High Court.

The primary question before the court was whether the act of forcefully taking a child from the mother's custody using a weapon constitutes "confinement" warranting the invocation of search warrant powers under Section 100 of the BNSS. The court was also called upon to determine if the revisional court erred in holding that custody with either spouse categorically negates the premise of confinement.

Revisional Court's Finding On Confinement Fundamentally Flawed

Justice Jamdar closely examined the reasoning of the Additional Sessions Judge, who had initially acknowledged that the welfare of a three-year-old child dictates custody with the mother. However, the High Court noted that the sessions judge fundamentally erred by observing that "custody of a child in either place of spouse does not amount to confinement," thereby concluding that Section 100 of the BNSS or Section 97 of the Criminal Procedure Code, 1973 (CrPC) would not apply to the facts of the case.

Forceful Taking At Gunpoint Justifies Invocation Of BNSS Search Warrant

The High Court strongly criticized the revisional court for turning a blind eye to the grave factual allegations presented in the original application. The bench emphasized that the specific averments clearly established that the respondent had not merely taken the child, but had done so forcefully by brandishing a firearm and subsequently concealing the minor at another location. The court underscored that such violent dispossession strips away the general presumption that custody with a parent is lawful.

"However, bare perusal of averments made in Criminal Miscellaneous Application No.772 of 2025 clearly shows that the Respondent forcefully took away the child from the custody of the mother by showing the revolver and confined him at another place."

Magistrate Rightly Exercised Powers To Protect The Minor

Validating the initial intervention by the trial court, the High Court held that the Magistrate had correctly appreciated the gravity of the situation. Given the severe nature of the allegations involving a firearm, the High Court found that the Magistrate was entirely justified in directing the police officials of Pawarwadi Police Station to execute a search warrant and recover the child. The bench noted that the powers under Section 100 of the BNSS were appropriately exercised to rescue the confined minor.

Sessions Court's Interference Termed Perverse And Illegal

The bench concluded that the Additional Sessions Court's decision to set aside the Magistrate's protective orders was legally unsustainable. By completely ignoring the violent method employed to snatch the child and the resultant illegal confinement, the revisional court passed an order that the High Court declared to be both perverse and illegal. The court stressed that the revisional authority should not have interfered with the Magistrate's legally sound directives.

Ultimately, the High Court quashed the order passed by the Additional Sessions Judge and fully restored the original orders of the Magistrate granting custody to the mother. The court noted that a co-ordinate bench had already stayed the impugned revisional order earlier, ensuring the child remained safely with the mother throughout the pendency of the proceedings.

Date of Decision: 06 July 2026