- (1.) The order dated 16-5-97 passed in M.P. Case No. 367(S) of 1997 by the learned Sub-Divisional Magistrate, Sadar, Hooghly forms the subject, matter of the challenge in the instant revisional application filed under Sections 401 and 482 of the Code of Criminal Procedure.
(2.) The said M.P. case arose out of an application that was filed by the wife/opposite party No. 2 under Section 94 of the Code of Criminal Procedure praying for recovery of certain properties mentioned in the schedule annexed to that petition on the strength of a Search Warrant to be issued against the husband-petitioner. The averments made in the said application under Section 94 of the Code of Criminal Procedure may be stated as follows :The marriage between the petitioner and Opposite Party No. 2 took place on 25-1-91. At the time of marriage the father and the relatives of the wife-opposite party gave a sum of Rupees 25,000/- in cash and the articles mentioned in the schedule annexed to the petition to the husband as per demand of the husband and his relatives. After marriage the husband and his father demanded Rs. 80,000/- from the father of the wife for starting Nursing Home, but the wife's father expressed his inability to accede to that demand. As a result, the husband became furious and started torturing the wife physically and mentally and abusing her in vulgar languages and threatened her with dire consequences. On 26th August, 1996 at the instigation of his relatives, the husband drove the wife out of the matrimonial home along with her child keeping all the articles mentioned in the schedule in their custody saying that the door of the matrimonial home would remain closed for her in case she failed to procure money that was demanded by the husband for starting Nursing Home. Since then, the petitioner started living in her father's house. To explore the chance of a mutual settlement, a meeting was held on 6-10-96 at the residence of the husband and the wife returned to matrimonial home on 13-10-96 with the hope of leading a normal conjugal life. But after the lapse of some time her hopes were belied. Her husband started ill-treating as before and finally on 21-1-97 the wife was forced to leave the matrimonial home along with her child and the husband dishonestly misappropriated the scheduled properties which belonged to the wife. The wife is a teacher by profession. Since 21-1-97 she has been staying in her father's house. It is reported that the husband has been trying to sell the ornaments and other articles that were gifted by the father of the wife at the time of marriage. Although in paragraph 9 it has been specifically alleged that the husband has dishonestly misappropriated the scheduled properties, in paragraph 12 it has been also alleged that the husband might misappropriate all the scheduled articles and that such conduct on the part of the husband amounted to nothing but a criminal breach of trust. The wife had to lodge a complaint with the Chinsurah P.S. on 4-5-97 against the husband and his other inmates of the matrimonial home and on the basis of the said complaint Chinsurah P.S. Case No. 153 of 97 has been started under Sections 498(1) and 406 of the Indian Penal Code. It is reasonably apprehended that the properties might be usurped by the husband as a result of which the wife would suffer irreparable loss and injury, O.C., Chinsurah Police Station was requested to recover the properties but he advised the wife to bring an order of search warrant against the husband. And hence this application under Section 94 of the Code of Criminal Procedure.
(3.) On the basis of this application under Section 94 of the Code of Criminal Procedure, the learned Magistrate by his order No. 1, dated 16-5-97 recorded his satisfiaction that the husband had forcibly kept the scheduled articles in his custody with a view to misappropriate them and that immediate recovery of the said articles from the illegal custody of the husband was expedient and in such view of the matter the learned Magistrate ordered issuance of search warrant under Section 94 of the Code of Criminal Procedure directing the O.C. Chinsurah Police Station to search the matrimonial home in order to recover the scheduled articles as per identification of the wife and seize them for further orders towards their delivery to the wife. The learned Magistrate fixed 2-6-97 as the date for production of the articles.;