IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE THIRD DAY OF JUNE TWO THOUSAND AND NINE PRESENT THE HON'BLE MR JUSTICE A.GOPAL REDDY and THE HON'BLE MR JUSTICE B.CHANDRA KUMAR WRIT PETITION NO : 6509 of 2009 Between: 1 Dr. S.Shafiuddin S/o. S.Vali Ahmed, R/o. 33/156, Lake Ville Extension, RTC Colony, Tribulgherry, Secunderabad. 2 Ash Sulthana, W/o. Dr. S.Shafiuddin, R/o. 33-76, Lake Ville Extension, RTC Colony, Tribulgherry, Secunderabad. ..... PETITIONER(S) AND 1 The Inspector of Police, Kazipet Police Station, Warangal District. 2 Mohd. Haleem @ Sajid S/o. M.A.Lateef, R/o. 1-1-881, Siddarth Nagar, NIT, Khazipet, Warangal District. 3 Razia Begum, W/o. Mohd. Haleem @ Sajid, R/o. 1-1-881, Siddarth Nagar, NIT, Khazipet, Warangal District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to to issue an appropriate Writ, Order or direction more particularly one in the nautre of WRIT OF HABEAS CORPUS, under Art. 226 of the constitution of India directing the respondents to produce the daughter of the petitioner by name Shaika Ali Ahmed Before this Hon'ble Court and consequently handover to the petitioner by declaring the custody of the child with the respodnents No.2 and 3 as illegal, arbitrary and void and pass Counsel for the Petitioner:MR.T.PRADYUMNA KUMAR REDDY Counsel for the Respondent No.: THE ADVOCATE GENERAL The Court made the following : HON’BLE SRI JUSTICE A. GOPAL REDDY AND HON’BLE SRI JUSTICE B.CHANDRA KUMAR WRIT PETITION NO.6509 OF 2009 ORDER: (Per Hon’ble Sri Justice A. Gopal Reddy) Petitioners invoked the habeas corpus jurisdiction of this Court under Article 226 of Constitution of India for production of their minor daughter by name Shaika Ali Ahmed from the custody of respondents 2 and 3 and to handover her custody. It is the case of the petitioners that they were blessed with two baby twins namely, Shifa Ali Ahmed and Shaika Ali Ahmed (alleged detenu) and brought up for about 3 years and on the advice of the elders and doctors, to avoid their being infected by diseases, the petitioners requested the respondents 2 and 3, who are the 1st petitioner’s brother-in- law and sister, to keep the alleged detenu with them at Khajipet, Warangal District. Accordingly, the petitioners entered into a memorandum of understanding on 16.3.2005 with the respondents 2 and 3 to keep the alleged detenu with them till the petitioners want to take her back and the petitioners also agreed to remit the entire expenses of child. As the alleged detenu is now aged about 8 years, the petitioners requested the respondents 2 and 3 to handover her custody, but they refused to handover the custody of the alleged detenu. The petitioners lodged a complaint before the Station House Officer, Tirmulgerry Police Station and as no action was taken, they filed Crl.M.P.No.9618 of 2008 before the XI Additional Chief Metropolitan Magistrate, Secunderabad under Sections 97 and 98 of Cr.P.C. The learned Magistrate by order dated 1.12.2008 ordered for production of alleged detenu along with respondents 2 and 3. Accordingly, the alleged detenu was produced before the Court on 3.12.2008 and on being examined by the Magistrate, she expressed her willingness to go along with the respondents 2 and 3 and therefore, the learned Magistrate closed the Crl.M.P.No.9618 of 2008. Aggrieved by that, the petitioners approached this Court by filing a revision in Crl.R.C.No.289 of 2009. A learned single Judge of this Court by order dated 18.3.2009 dismissed the revision filed by the petitioner No.1. Thereafter, the present writ petition has been filed. The issue whether the child was in illegal custody of respondents 2 and 3 or whether the custody should be handed over to the petitioners was directly the issue in Crl.R.C.No.289 of 2009 which was dismissed by the learned single Judge of this Court confirming the order passed by the learned XI Additional Chief Metropolitan Magistrate, Secunderabad. In effect, the request of the petitioners for handing over the custody of the alleged detenu was negatived treating that the child is not in illegal custody of respondents 2 and 3 and that the petitioners were granted liberty to move the appropriate Court under the Guardians and Wards Act for the custody of the child. If the petitioners were aggrieved by the said order, they have to carry the matter in appeal but a writ under Article 226 of Constitution of India cannot be maintained in view of the law declared by the Apex Court in Naresh v. State of Maharashtra[1]. Further, their Lordships of Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Datatraya Bapat[2] also referred to its earlier judgment in U.J.S. Chopra v. State of Bombay[3], in which, the principle of merger was considered with reference to Section 439 of Cr.P.C. which confers revisional jurisdiction on the High Court, where, the majority of judgment inter alia, held that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing, in the presence of both the parties would replace the judgment of the lower Court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the court of law. In the decision 2 supra, the Apex Court at para 8 further held: “Even on the assumption that the order of the appellate Court had not merged in the order of the single judge who had disposed of the revision petition we are of the view that a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under Section 115 of the Code of Civil Procedure. If there are two modes of invoking the jurisdiction of the High Court and one of those modes had been chosen and exhausted it would not be a proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of the same order of the Subordinate Court. The refusal to grant relief in such circumstances would be in consonance with the anxiety of the Court to prevent abuse of process as also to respect and accord finality to its own decisions.” In the above decision the principle that emerges is that once the petitioners avail the remedies available to them for the custody of the child complaining illegal detention and failed to get the custody of the child, they again cannot be permitted to invoke the extraordinary jurisdiction for the same relief. Therefore, in the case on hand, entertaining the writ petition and passing of any order for custody of child amounts to nullifying the order passed by the learned single Judge in exercise of the revisional jurisdiction, against which, the High Court cannot exercise any appellate jurisdiction for reversing the judgment. In view of the same, it is unnecessary for us to go into the contentious issue of the petitioners’ entitlement to the custody of the alleged detenu under the Muslim law as held by the Allahabad High Court in Zahiral Hassan v. State of U.P.[4] For the reasons discussed above and as the petitioners have already been granted liberty to move the Court under the Guardians and Wards Act for the custody of the alleged detenu, we dismiss the writ petition. No order as to costs. _________________ (A. GOPAL REDDY, J.) _______________ (B.CHANDRA KUMAR J.) JUNE 03, 2009 TSR [1] AIR 1967 SC 1 [2] AIR 1970 SC 1 [3] AIR1955 SC 633 [4] 1988 CRI.L.J. 230