1 2685.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2685 OF 2010 Smt.Pratibha Daljeet Chand (Nee Waziran @ Shakeela Sharif Khan) & Anr. ... Petitioners Versus The State of Maharashtra & Ors. ... Respondents ...... Mr. Naveen Chomal for the Petitioners. Mr. J.P.Yagnik, A.P.P. for Respondents 1 & 4. Mr.Rizwan G.Merchant with Mr.Swapnil L.Wagh for Respondent No.5. ....... CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. (IN CHAMBER) DATED:- OCTOBER 6, 2010. P.C. 1. Pursuant to our previous order dated 4th October 2010, sealed envelope from Superintendent, Sir JJ Hospital, Mumbai has been presented by the learned A.P.P. before us. The same was opened in the presence of all parties as well as their Advocates including the Police Officials who have come from the State of Jammu & Kashmir. 2 2685.10.sxw 2. The medical examination report received under the signature of Dr.Suhas Kulkarni, Lecturer, Department of Radiology, Dr.Sunanda Dhivre, Dental Surgeon, Dr.B.G.Chikhalkar, Associate Professor, Forensic Medicine & Toxicology Department dated 6th October 2008 is taken on record. Copy of this report be made over to the learned A.P.P. as well as Counsel appearing for the private parties. 3. The opinion recorded in the said report upon conducting necessary tests, is that, the age of Pratibha Daljeet Chand who was brought for ossification test is between 18 years to 19 years. 4. Considering the Birth Certificate produced by the Petitioners and the medical examination report, it necessarily follows that the Petitioner No.1 was major on the relevant date i.e. 4th September 2010. We would once again clarify that this opinion is rendered only for considering the present proceedings and will not influence the criminal proceedings instituted at the instance of Respondent No.5 in the State of Jammu & Kashmir. May be in the said proceedings, the correctness, genuineness and validity of the respective Birth Certificates produced by the Petitioners on the one hand and the Respondent No.5 and the Police from State of Jammu & Kashmir on the other hand, will have to be examined. 3 2685.10.sxw 5. After having reassured ourselves that the Petitioner No.1 is above 18 years of age and was major at the relevant time, we have no hesitation in proceeding to consider the reliefs claimed in the present Petition. The principal relief claimed is that the local Police from State of Jammu & Kashmir be directed to record statement of Petitioner No.1 in the Office of Commissioner of Police, Mumbai and before the Magistrate under Section 164 of the Criminal Procedure Code as applicable to State of Maharashtra. Insofar as the latter relief is concerned, the Police Officials who have come from State of Jammu & Kashmir have expressed desire to record the statement of Petitioner No.1 in the presence of Magistrate under Section 164 of the Cr.P.C. 6. We, therefore, direct the Chief Metropolitan Magistrate to make necessary arrangement for recording of statement of Petitioner No.1 under Section 164 of the Cr.P.C., if possible in the course of the day, so that the Police Officials from State of Jammu & Kashmir would be free to return to their home State as they have been waiting for this proceedings since 1st October 2010. We have noticed that the procedure for recording of statement as provided under Section 164 of the Cr.P.C. is similar to the 4 2685.10.sxw analogous provisions in the Ranbir Procedure Code. We, however, express no final opinion even on this aspect of the matter. More so, regarding the efficacy of the statement so recorded by the Jammu & Kashmir Police before the Magistrate in Mumbai. The statement so recorded be forwarded by the Magistrate to Munsif Magistrate, Chenani, District Udhampur, State of Jammu & Kashmir in sealed cover as required in terms of Section 164 (6) of the Code. 7. After copies of medical examination report is made over to the parties and Advocates as mentioned earlier, the same along with the envelope in which it was received, be kept back in sealed cover to be preserved by the Registrar (Judicial) as per the Appellate Side Rules, which can be made over to the appropriate Authority as and when required. It will be open to the Police from State of Jammu & Kashmir to make appropriate application for production of original report to be produced in the concerned Criminal Court as and when required. 8. Before disposing of this Petition, we may like to place on record that the Petitioner No.1 was present in Chamber along with Petitioner No.2. She was called upon to indicate her option as to whether she would like to go 5 2685.10.sxw with her father (Respondent No.5) or stay with her husband (Petitioner No. 2). As recorded in our earlier orders dated 1st October 2010 and 4th October 2010 respectively, she has reiterated her stand that she would continue to stay with Petitioner No.2 who is her husband. Even then, we thought it appropriate to give one more opportunity to the Petitioner No.1 and Respondent No.5-her father to interact and then make her decision. Accordingly, the Respondent No.5 and Petitioner No.1 were closet for quite some time in our Chamber in presence of all the Advocates who are appearing before us today in Chamber as well as other parties and the Police Officials from the State of Jammu & Kashmir and from Air Force. Even after interaction with Respondent No.5 for quite some time, the Petitioner No.1 reiterated her stand that she would stay with her husband Petitioner No.2 who is presently posted in Mumbai. In view of the firm stand taken by the Petitioner No.1 before us in the presence of all the Advocates and other Officials, we reject the prayer of Respondent No.5 to hand over custody of Petitioner No.1 to him being her father. 9. Petition is disposed of on the above terms. 6 2685.10.sxw 10. We make it clear that the arrangement stated in our order dated 1st October 2010 will enure in favour of Petitioner No.2 to enable him to approach the appropriate Court in the State of Jammu & Kashmir. 11. All concerned to act on an ordinary copy of this order, duly authenticated by the Office. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)