DURYODHAN MAHANTA Vs. SARASWATI MAHANTA

JUDGEMENT

(1.) Propriety of order passed under S. 97 of the Criminal Procedure Code, 1973 (in short the 'Code'), is the subject-matter of adjudication in this revision application.

(2.) Opposite party filed a petition styled one u/S.97 of the Code praying learned Judicial Magistrate, First Class, Jajpur Road (in short the 'JMFC') to issue a search warrant to the Officer-in-Charge, Sukinda Police Station to search the house of present petitioner, release from his custody a child confined by petitioner and produce him and to give custody to the mother, the present opposite party as she is the best custodian of the child. According to present opposite party, petitioner was her husband and a son named Laxman was born on 28-12-1987; on 7-7-1990 she was driven out of the house of petitioner who had married for second time; a case for grant of maintenance was filed, as well as a complaint case u/S.494 of the Indian Penal Code, 1860 (in short the 'IPC'); on 1-9-1990 the present petitioner forcibly took away the child to his house, and there was apprehension of danger to life of the child and the mother is the best custodian of the child. It was alleged that child was wrongfully confined and there was necessity for issue of a search warrant in terms of S. 97 of the Code. The prayer was accepted by learned JMFC, who directed the Officer-in-Charge, Sukinda P.S. to recover the child and produce him before court soon after execution of search warrant. This order was passed on 3-9-1990. The matter was directed to be placed on 4-9- 1990. Since order dated 3-9-1990 was not complied, it was adjourned to 7-9-1990. Matter was again adjourned to 21-9-1990, awaiting execution of warrant. On 17-9-1990, search warrant issued was returned after execution. Petitioner entered appearance on that date. Since opposite party was not present in court, her Advocate filed a petition to keep the child in the custody of head of the institution of Gobarghati Ashram School. The head of the said institution expressed his inability to take custody of child, on the ground that there was no scope for keeping such a small child. It is asserted by learned counsel for petitioner that in view of refusal by Ashram authority, the child was left uncared for in the Police Station and petitioner was called to look after him. On 19-9-1990 matter was taken up by learned JMFC, who passed an order delivering custody of the child to the mother (opposite party), with further direction that she was to have custody till the child attains majority. He also further directed that after the child attains majority, he is at liberty to go to his father (petitioner). It was also directed that if father wanted in between to see the child, he was permitted to do so.

(3.) According to learned counsel for petitioner, exercise of jurisdiction u/S. 97 of the Code was illegal and uncalled for. Learned counsel for opposite party, however, submits that there is nothing illicit in the order passed by learned JMFC to warrant any interference.