5. cr appln 141-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 141 OF 2010 Jivanadevi Yogendranath Adhar & Anr .. Applicants Vs Vimalkumar Dayaram Manake (Roy) & Anr. .. Respondents Mr. Rahul D. Motkari for the Applicants Mrs. I.M. Koparkar for Respondent no. 1 Ms. M.M. Deshmukh, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 16th SEPTEMBER,2010. P.C.: 1. Heard learned advocate for the applicants, learned advocate for respondent no. 1 and learned APP for the State. 2. The applicants are the maternal grandparents of Kumar Niyo Vimalkumar Manake aged about approximately two years. Respondent no. 1 was married to daughter of the present applicants. Wife of respondent no. 1 died and case came to be registered against him. It was later numbered as Sessions Case No. 106 of 2009. He came to be acquitted in the said case on 28th October 2009. 3. The case of respondent no. 1 is that he had handed over his son Niyo to the maternal grandparents to maintain him 1 5. cr appln 141-10.doc during the period that he was in custody, he was not able to look after the child. However, now that he has been released, the present applicants refuse to handover his son Niyo to him. Hence, he preferred application Exh. 1 in Criminal M.A. No. 835 of 2009 before learned JMFC, 2nd Court, Nasik praying for search warrant under Section 97 of Cr.P.C. against the present applicants. The learned JMFC by order dated 10th December 2009 issued search warrant against the applicants, hence, they approached this court. 4. At the outset, it may be stated that the applicants are not denying that Niyo is in their custody. Learned advocate for the applicants submitted that no notice was given to them and if notice was given to them, they would have pointed out true and correct facts including the fact that a Guardian Petition is pending before the Court at Kanpur. It is seen that the proceedings are still pending before the learned JMFC at Nasik, hence, in my opinion, it would be appropriate that the applicants are granted a chance to submit their say before the learned JMFC, Nasik. In this view of the matter, the order dated 10th December 2009 is quashed. It is open to the applicants to approach the learned JMFC and submit their say. Learned Magistrate after giving an opportunity to the applicants to give their say, shall pass such orders as deemed fit in accordance with law. 2 5. cr appln 141-10.doc 5. Application is disposed of in above terms. [SMT. V.K. TAHILRAMANI, J.] 3