Crl.Misc.No.M-30876 of 2009 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Misc.No.M-30876 of 2009 (O&M). Decided on: March 25, 2010. Bharti Sehdev and another .. Petitioners VERSUS State of Punjab and others .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI * * * PRESENT Mr.Ranjan Lakhanpal, Advocate, Mr.Nitin Thatai, Advocate, for the petitioners. Mr.Vikram Chaudhary, Advocate, for the private respondents. Mr.Arshvinder Singh, DAG, Punjab. M.M.S. BEDI, J. (ORAL) Petitioners Bharti Sehdev and Hira Lal Sehdev had filed a petition under Section 482 Cr.P.C., for issuance of a direction to respondent Nos.1 to 3, to conduct a thorough investigation in FIR No.459 of 27.10.2009, registered under Sections 363/504 and 506 IPC and to recover the son of the petitioner namely Abhi from the illegal detention of respondent No.4. . . . 1 Crl.Misc.No.M-30876 of 2009 (O&M) On notice having been issued to respondent No.4, the following order dated 09.12.2009, was passed: - “This is a petition for the issuance of a direction to respondents No.1 to 3, to conduct thorough investigation into case FIR No.459 dated 27.10.2009, registered under Sections 363/504/506 of the IPC, at Police Station, Sadar Amritsar, lodged by the petitioner against respondent No.4 alleging kidnapping of a child. Brief allegations and counter allegations are that the petitioner had agreed to bear a test tube baby for respondent No.4. However, as per the FIR, when the petitioner went to get her medical examination prior to the artificial fertilization, she found that she was already pregnant. The petitioner told respondent No.4, that in these circumstances it would not be possible for her to cooperate with him. It is further alleged that after a male child was born, he was kidnapped by respondent No.4. The counter allegations of respondent No.4, are that in fact, the child is his. During the course of arguments, with the intervention of learned counsel for the parties, the dispute has been resolved. It has been agreed by the parties that DNA profile of the petitioner, the child and respondent No.4, be got conducted by the Central Forensic Science Laboratory, Sector 36, Chandigarh. In case, it is found that respondent No.4, is the father of the child, the petitioner will . . . 2 Crl.Misc.No.M-30876 of 2009 (O&M) hand over custody of the child to him and will give up all claims on the child and would get a civil suit, as also a petition filed before the Punjab Human Rights Commission dismissed as withdrawn, and cooperate with respondent No.4, to have the present FIR quashed. However, if it is found that respondent No.4, is not the father of the child, he will immediately hand over the custody of the child to the petitioner and will withdraw all the claims over the child. Statement of the parties, identified by their respective counsel, have been recorded separately. It has also been agreed that till the period the DNA test reports are received, the petitioner will stay with her child at Flat No.1276, First Floor, Silver City Green, Zirakpur, District Mohali, which is a functional flat owned by respondent No.4. During stay in the said flat, the petitioner would be accompanied by her mother. The husband of the petitioner or respondent No.4, or indeed any other person would not have any access to the child. The child would not be taken out from the premises except for any medical emergency. For the purpose of drawing samples for DNA tests, I direct the Medical Superintendent, Government Multi Specialty Hospital, Sector 16, Chandigarh, to do the needful, and the petitioner, respondent No.4, and the child shall approach him at 11 AM tomorrow for this purpose. After the samples are drawn, the custody of the child shall be . . . 3 Crl.Misc.No.M-30876 of 2009 (O&M) handed over to the petitioner who shall proceed (in a vehicle to be provided for this purpose by respondent No.4), to Flat No.1276, First Floor, Silver City Green, Zirakpur, District Mohali. Counsel for the State of Punjab is requested to ensure that a lady police Constable is present all this time. The Medical Superintendent, GMSH, Sector 16, Chandigarh, is directed to ensure that the samples are dispatched to the CFSL, Sector 36, Chandigarh immediately in a sealed cover by a Special Messenger. Respondent No.1 is directed to ensure that a lady police Constable is deputed round the clock at the said flat at the expenses to be born by respondent No.4. Counsel for the State of Punjab has informed me that cost for providing one person security is approximately Rs.22,000/- pm. Respondent No.4 is directed to deposit this amount by way of bank draft in favour of the Senior Superintendent of Police, Mohali to cover expenses initially for a period of one month. Respondent No.4 is further directed to ensure that all living expenses of the petitioner, her mother and the child are met during this period. In view of peculiar facts and circumstances of this case, I direct that on receipt of samples from the GMSH, Sector 16, Chandigarh, the authorities of the CFSL, Sector 36, Chandigarh, shall undertake necessary procedure for DNA tests on priority basis and dispatch the result in a sealed cover under intimation to the learned counsel . . . 4 Crl.Misc.No.M-30876 of 2009 (O&M) appearing for the parties. Adjourned sine die with liberty to the parties to move an application for listing the case as and when the report of DNA test is received. Copy of this order be given dasti to counsel for the parties under the signatures of the Court Secretary.” On receipt of report of DNA, the following order was passed by this Court on 16.02.2010: - “The report of Central Forensic Science Laboratory, in sealed cover, received with regard to the paternity on the basis of DNA testing. On DNA analyses of the sample sources of Parminder Singh Oberoi, Bharti Sehdev and Abhi, it has been reported that from the DNA profiling of the said individuals and from the interpretations thereof, Parminder Singh Oberoi is excluded as biological father of Abhi, the male biological offspring of Bharti Sehdev. The report is made part of the record. In view of the above said report, the interim arrangement made pursuant to the interim directions passed by this Court is partly modified, at this stage, to the effect the petitioner will be at liberty to move to her residence at Amritsar, along with the child. For further arguments and final orders, adjourned to 25.03.2010.” . . . 5 Crl.Misc.No.M-30876 of 2009 (O&M) The relief sought for by the petitioners in the light of the order dated 09.12.2009, has already been granted and the petition has become infructuous. Counsel for respondent No.4, submits that in view of the statements made by the parties on 09.12.2009 and the subsequent event i.e., receipt of report of DNA and the factum of petitioner having filed another petition for quashing of FIR i.e., Crl. Misc. No.1636 of 2010, the FIR should be quashed. Counsel for the petitioners informs that Crl.Misc.No.1636 of 2010 has been withdrawn. Faced with this situation, counsel for respondent No.4, submits that interim protection which was granted to respondent No.4, during pendency of the arrangement as per order dated 09.12.2009, be permitted to continue during pendency of the trial. After hearing the counsel for the petitioners and counsel for the respondent, I am of the considered opinion that so far as the scope of the present petition is concerned, the petition has outlived its utility. The respondent in view of the various events after the registration of FIR, has got a right to Additional remedy under Section 438 Cr.P.C., in case he has not opted so; it will be open to the respondent to seek the quashing of the proceedings by filing a separate petition. It is also made clear that in case custody of respondent No.4, is not required by the Investigating Agency, it will be open to the State Agency to follow the directions as laid down in Joginder Kumar Vs. State of U.P. & Ors., 1994(4) SCC, Page-260. . . . 6 Crl.Misc.No.M-30876 of 2009 (O&M) In view of peculiar circumstances of this case, protecting the rights of respondent No.4, it is directed that he will not be arrested till 17.04.2010. He can avail any legal remedy available to him in accordance with law. Disposed of as having rendered infructuous. (M.M.S.BEDI) JUDGE March 25, 2010. rka . . . 7