1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 320 OF 2010 WITH CRIMINAL APPLICATION NO. 2191 OF 2010 Umar Khan s/o Usman Khan Pathan and others ...Applicants Versus The District Superintendent of Police and another ...Respondents ..... Mr. A.B. Gaikwad, advocate for the applicants Mr. N.N. Jadhav, A.P.P. for respondents ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED: 17TH JUNE, 2010 PER COURT:- 1 We heard learned counsel Mr. A.B. Gaikwad for the petitioner/applicant and learned A.P.P. Mr. Jadhav, for the respondents. 2 This petition was filed in this court on 25.3.2010, by one Mr. Umar Khan s/o Usman Khan Pathan, praying the following reliefs: 2 “A. Rule be made. B. By issuing of writ of habeas corpus the respondents be directed to produce the minor daughter of the petitioner Anjumbee before this Hon'ble Court and to hand over the custody of the minor Anjumbee to the petitioner and obliged. C. Any other suitable relief which this Hon’ble court deems fit be granted in the interest of justice.” 3 In substance, writ of habeas corpus is sought by the petitioner against the respondents for producing minor daughter of the petitioner Anjumbee before this court and hand over the custody of minor Anjumbee to the petitioner. This petition was before this court on 30.3.2010. On that day, learned A.P.P. took notice for respondent Nos.1 and 2. He was directed to file affidavit in reply on the adjourned date. Hearing of the petition was deferred to 6.4.2010. The respondents were also put to notice that in case of their failure to file affidavit in reply within time, respondent No.2 was directed to remain present before this court with relevant record and proceeding. Accordingly, the matter was before this Court on 6.4.2010. On that day, we have noticed that service of respondent Nos. 1 to 6 was 3 incomplete. We have recorded statement of learned A.P.P. that affidavit was ready. However, it was not sworn in. Since the service was incomplete, the matter was adjourned to 20.4.2010. The matter was taken up by this Court on 20.4.2010. On that day, the Registry reported that service report of respondent Nos. 3 to 6 was received unserved. The matter was adjourned to 22.4.2010. On 22.4.2010, we have recorded that respondent No.3 to 6 were not served. We have seen the report of the Registry to that effect. Mr. Gaikwad, learned counsel for the petitioner on that day, sought time to place on record rejoinder with copy of the school leaving certificate of minor girl. Hearing was deferred to 27.4.2010. We have seen the order passed by this Court on 27.4.2010. We have recorded the statement of learned counsel for the petitioner Mr. A.B. Gaikwad. Notice was not served to respondent Nos. 3 to 6. Deletion of those respondents at the request of the petitioner was permitted and it was recorded that on such deletion service of the petitioner on all respondents is complete. 4 Mr. Gaikwad, has raised a grievance pertaining to role of police Officer i.e. P.S.I. Pathan. In substance, allegation was made against the said Police Officer, who, according to the petitioner, was rendering assistance to the accused persons without making any efforts for searching alleged minor daughter of the petitioner. The Superintendent of Police, Jalna in view of the serious allegation made by the counsel for the petitioner before this Court, was directed to file 4 affidavit in response to the affidavit in rejoinder filed on behalf of the petitioner. The matter was adjourned to 3.5.2010. We have also seen the order passed by this court on 3.5.2010. On that day, after hearing the parties order was passed. Now, we are not reiterating the contents of the said order. Thereafter the matter was taken up on 5.5.2010. We have seen the order dated 5.5.2010. On 5.5.2010 the matter was adjourned to 15.6.2010. While parting with these orders, we have noticed that the Superintendent of Police, Jalna was saddled with cost of Rs.500/-. Learned A.P.P. makes a statement that in view of the said order, the costs is deposited in this Court. 5 After summer vacation of 2010, this Court re-opened on 7.6.2010. On behalf of the State, criminal application No. 1853 of 2010 in writ petition No. 320 of 2010 was noticed to have been filed. We have also seen from record that one more criminal application No. 2191 of 2010, which has been filed on behalf of the original petitioner with three other family members in same writ petition i.e. Criminal Writ Petition No. 320 of 2010. This criminal application is filed on 15.6.2010. The petitioner and other three family members, by way of this criminal application, pray for permission/direction in favour of the applicant to visit minor Anjumbee, who is lodged at Women Welfare Home, Jalna. 6 Today, we have heard counsel Mr. Gaikwad for the applicant in 5 criminal application No.2191 of 2010. In view of the earlier order, learned A.P.P. has placed on record copy of the order passed by the learned J.M.F.C. Ambad in Crime No. 52 of 2010, registered under Section 363, 366-A and 34 of I.P.C. It so happened that the concerned Investigating Officer, after registering the crime arrested the accused persons, found the minor daughter of the petitioner Anjumbee and produced the accused persons and daughter before the learned J.M.F.C. Court No.2 Ambad. The order passed by learned J.M.F.C. Court No.2 Ambad is on record. Copy is served on the learned counsel Mr. Gaikwad. This order is placed on record by learned A.P.P. From this order, it appears that learned J.M.F.C. has noticed pendency of the criminal writ petition No.320 of 2010 in this Court. Learned J.M.F.C. had issued notice to the parents of the minor girl Anjumbee to take custody of the girl since father of the girl i.e. petitioner has filed writ petition No. 320 of 2010 and was/is pending before this Court. Noticing all circumstances, pointed out to him, learned J.M.F.C. directed the Superintendent, Women Welfare Home, Jalna to take custody of the girl Anjumbee, daughter of Umar Khan Usman Khan Pathan. This order was passed on 30.4.2010. Indisputably, in view of the said order, the custody of the girl is taken over by the Superintendent, Women Welfare Home, Jalna. 7 Mr. Gaikwad, learned counsel has raised serious grievance regarding the conduct of the Police Officer concerned. Criminal 6 application No. 2191 of 2010 is filed by the applicants including the original petitioner Mr. Umar Khan Usman Khan Pathan seeking permission of this court to visit the minor girl Anjumbee. Learned A.P.P. submits that since the crime No. 52 of 2010 is seized with learned J.M.F.C. Court No.2 Ambad, such application can be made before that Court. 8 This court, can exercise the power under Article 226 and 227 of the Constitution. We have considered the nature of the writ petition pending before us. We have referred to all orders passed in writ petition, happening and pendency of these two criminal applications. 9 In our view, the applicants in these applications can be permitted to approach the learned J.M.F.C. Jalna in the facts and circumstances of this case to seek visit or permission. 10 Criminal application No. 2191 of 2010 therefore, stands disposed of. 11 However, we make it clear that in case application is filed by the present applicants i.e. petitioner in writ petition No. 320 of 2010 alongwith the family members seeking permission of the learned J.M.F.C. Court No.2 Ambad to have access of minor girl Anjumbee, who is in custody of the Womens Welfare Home, Jalna, the Court shall 7 consider the said application, hear the parties and pass appropriate orders. Pendency of criminal writ petition No. 320 of 2010 before this court shall not be impediment for the present applicants, if they desire to file application before learned J.M.F.C. 12 Once again it is made clear that we have not dismissed or disposed of this application on merits. On the contrary, liberty is granted in favour of the present applicants to make such prayer if they desired to do so to learned J.M.F.C. Ambad. Liberty in favour of the original petitioner Mr. Umar Khan to address this court on all points including the conduct of the Police Officer, while hearing writ petition No. 320 of 2010, which still pends before this Court. 13 At the request of counsel for the petitioner hearing of writ petition is adjourned to 29.6.2010. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/