1 11WP.2374-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2374 OF 2011 Shri Sushil Kumar Modi and 3 others. ..Petitioners. Vs. Police Commissioner,Mumbai Police and 11 others. ..Respondents. .......... Mr. Ashok Sharma, Advocate for the Petitioners. Mr. V.A. Thorat, Senior Counsel a/w. Vaibhav Sugdare and Prakash Wagh, amicus curiae for Respondent No.5. Ms. S.V. Gajare, A.P.P. for the State. .......... CORAM : A. M. KHANWILKAR AND P. D. KODE, JJ. DATED : 14th SEPTEMBER, 2011. P.C. 1. Heard learned Counsel for the petitioners and learned amicus curiae for respondent No.5. Pursuant to the notice served on the respondent No.5, she has appeared in-person along with the minor child who is only 2 & ½ years of age. The minor child is in the custody of mother who is her natural guardian. In this view of the matter, no further direction is required to be issued. 2. Counsel for the petitioners, however, relying on the observations in the order passed by the Supreme Court dated 15.7.2011 in Criminal Writ Petition No.128 of 2011 submits that the petitioners are entitled to PPD 2 11WP.2374-11 pursue their remedy before this Court on the grounds stated in the Petition. According to the petitioners, respondent No.5 is leaving unchast life and there is threat to the life and well being of minor child. On this plea, the petitioners would urge that the High Court ought to issue writ of habeas corpus and direct respondent No.5 to hand over custody of minor child. We are afraid, the order dated 15.7.2011 passed by the Supreme Court, relied by the petitioner, does not even remotely suggest that such direction should be passed mechanically. 3. It is pertinent to note that upon institution of the Petition, the Court directed the private respondent to produce the minor child which according to the petitioners was not in safe condition, but, that does not mean that further order of handing over custody of the minor child should necessarily follow in the present Writ Petition. 4. Since respondent No.5 has already produced the child before the Court and we find that the child is well and healthy, no further direction is required to be issued by this Court. The petitioners are free to pursue their remedy before the appropriate forum, if so advised. We express no opinion either way on the merits of the contentions raised in the present Petition. Those are the matters which can be conveniently dealt with by the Family Court on its own merits in accordance with law. 3 11WP.2374-11 5. Learned amicus curiae has justly invited our attention to the exposition of the Apex Court in the case of Capt. Dushyant Somal Vs. Smt. Sushma Somal and others, AIR 1981 SUPREME COURT 1026, in particular para-3 thereof. In the wake of the said observations, we are not inclined to exercise our writ jurisdiction. Instead, we keep the remedy of getting custody of the child open to be pursued by the petitioners before the appropriate forum. 6. Petition is disposed of accordingly. 7. The court expresses a word of gratitude to the learned amicus curiae for his able assistance for espousing the cause of the respondent No.5. 8. Learned amicus curiae points out that respondent No.5 apprehends that since she has come to Mumbai to respond to the present Petition, while returning back to Indore to her home-town, she may be obstructed or forcible custody of the minor child will be taken from her. This allegation is refuted by the Counsel appearing for the petitioners. Counsel for the petitioners submits that this apprehension is wholly misplaced. We place that statement of the petitioners on record. (P. D. KODE, J.) (A. M. KHANWILKAR, J.)