Decided on August 01,1973

Srimati Shyamali Roul Appellant
Meghnad Roul Respondents


G.K. Misra, J. - (1.) THE Petitioner is the wife of the opposite party. She filed an application for divorce which was dismissed. She has filed First Appeal No. 1 of 1972 which is pending in the High Court. The husband filed a complaint on 27 -10 -1972 before the Sub -Divisional Magistrate, Cuttack, which is registered as I.C.C. Case No. 428 of 197 under Section 497/434, Indian Penal Code against two persons Sushil Kumar Das and Sarat Kumar Sahu alleging that the accused persons seduced the Petitioner and enticed her away from the opposite party 's house. On the very date the husband moved another petition for issue of a search warrant under Section 100, Code of Criminal Procedure for production of the Petitioner. The learned Magistrate allowed this petition by his order dated 23 -7 -1973. It is against this order that the criminal revision has been filed.
(2.) THERE was an allegation that the Petitioner is an insane. The learned Magistrate found that she is not insane. The case was heard in my chambers in the presence of the advocates for both the parties without outsiders being allowed to be present at the time of hearing. I put her questions as to why she is unwilling to go with her husband. She narrated her own story. But one thing is clear that she is not at all insane. She appears to be quite intelligent and sane and has rational understanding. It is to be noted that in the criminal case she is not an accused. Her liberty cannot be restrained by issue of a search warrant and by passing an order to detain her in the Anatha Ashram as has been done by the learned Magistrate under Section 100, Code of Criminal Procedure. That section runs thus: 100. Search for persons wrongfully confined: If any Presidency Magistrate, Magistrate of the First Class or Sub -Divisional Magistrate 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 this case the Petitioner who voluntarily appeared in person in Court was examined by the learned Magistrate Shri B. Sahu. She clearly stated that she had not been seduced by Sushil Kumar Das and Sarat Kumar Sahu and she does not live with them. No other materials were before the Court to establish that she committed any offence. The learned Magistrate, therefore, exercised his jurisdiction illegally in directing her to be detained for six months in the Anatha Ashram. The impugned order dated 23 -7 -1973 is set aside and the criminal revision is allowed.;

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