YUDHISTIR MOHANAND Vs. DALIMBA MOHANAND

JUDGEMENT

(1.) This revision is directed against the order dt. 19-7-1989 passed by the Sub-Divisional Magistrate, Sambalpur, to recall the search warrant under S.97 of the Criminal P.C. (2 of 1974). ('Code' for short) issued by him earlier.

(2.) Facts may be stated in brief. Indisputably the petitioner and the opposite party are husband and wife respectively. They lived together and a son was born to them. His age would now be about one and half years. According to the petitioner, the opposite party had some mental illness and was under treatment as an indoor patient of the V.S.S. Medical College and Hospital, Burla in the middle of the year 1988. Since then she was being administered medicines. On the advice of the doctors the child was separated from the opposite party. Later, the father of the opposite party took her away to his own village leaving the child with the petitioner. Since then she is not returning to the matrimonial home despite several attempts. According to the opposite party she was ill treated not only by the petitioner, but also by several family members. She was separated from the baby and was driven out at night from the matrimonial home. At that time the baby was forcibly snatched away from her and since then he has been kept by the petitioner. It is necessary that the child should be restored to her for his well being. So, at her instance a petition under S.97 of the Code having been filed, warrant was issued for restoration of the child to her.

(3.) At the first instance, the Sub-Divisional Magistrate on being convinced that a case under S.97 of the Code had been made out issued a search warrant to be executed by the police. On learning about the issuance of the search warrant, the petitioner appeared and filed an objection. The matter was heard in the presence of the learned counsel of both parties and ultimately the impugned order was passed refusing to recall the warrant.