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SCR.A/2289/2010 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 2289 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
ARVINDBHAI
MANIBHAI PARMAR - Applicant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK S SONI for
Applicant(s) : 1,
MR. LB DABHI, ADDL. PUBLIC PROSECUTOR for
Respondent(s) : 1 -
3
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE A.M.KAPADIA
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 02/12/2010
ORAL
JUDGMENT
(Per : HONOURABLE
MR.JUSTICE A.M.KAPADIA)
1. Rule.
Mr. Dabhi, learned APP appears and waives service of notice of Rule
on behalf of the respondents.
2. By
filing instant petition under Article 226 of the Constitution of
India, the petitioner has prayed to issue writ of Habeas Corpus or
any other appropriate writ, direction and/or order directing the
respondent authorities to find out and produce the corpus namely
Smita – daughter of the petitioner before this Court.
3. As
per the averments made in the petition, on 9.11.2010, daughter of the
petitioner had not returned home from a computer class. The
petitioner therefore, tried to search her everywhere. On 10.11.2010,
the petitioner came to know that three persons namely (1) Mukeshbhai
Udesinh Parmar (ii) Bhupendrabhai Shankerbhai Chavda and (iii)
Alpeshbhai – Teacher have kidnapped the corpus Smita from her
Guardian’s custody and have taken away the corpus on Bike No.GJ 23 I
9492. On 11.11.2010, the petitioner filed application before the
Anand Town Police Station, but not action has been taken. The
petitioner therefore, approached the DSP on 14.11.2010, but no action
has been initiated. Therefore, on 15.11.2010, petitioner filed
Criminal Misc. Application for search of the farm house of the
probable accused, but it was not considered by the Chief Judicial
Magistrate and the same has been disposed of as withdrawn. The
petitioner has therefore, filed instant petition seeking writ of
Habeas Corpus and prayed for the relief to which the reference is
made in the earlier paragraph of this judgment.
4. This
Court vide order dated 23.11.2010 issued Notice to respondents, which
was made returnable on 7.12.2010 on condition that the applicant
shall deposit Rs.10,000/- as a cost, to show her bona fide, on or
before 26.11.2010 before the Registry of this Court. In compliance
of the said order, the applicant has deposited Rs.10,000/- and
thereafter, the Notice came to be issued to the respondents.
5. Today
when the matter is called out, Mr. LB Dabhi, learned APP for the
respondents, upon instructions received from Mr. RS Vaghela, PSI,
Anand Police Station who is personally present in the Court, states
that corpus Smita was in the company of Mukeshbhai Udesinh Parmar and
she has been found out from his house at Isanpur, Ahmedabad and
therefore, he wants to produce the corpus before the Court in
compliance of the direction issued by this Court. We have therefore,
permitted him to produce the corpus before us.
6.
We have ascertained the wish and willingness of corpus Smita and
inquired as to whether she was in illegal detention of Mukeshbhai
Udesinh Parmar. She has unequivocally stated before us that she is
aged about 22 years and studied upto B.A. (Arts) and when she was
staying with her maternal uncle’s house at Bhalej – Kasod,
Anand and was prosecuting her further study in computer centre, she
came in contact with Mukeshbhai Udesinh Parmar. She therefore, went
with him and came to Ahmedabad. She has further stated that at her
own will, she has accompanied Mukeshbhai Udesinh Parmar and she was
not in illegal detention of Mukeshbhai
Udesinh Parmar. She has also stated that now, she has decided to go
at her parental house with the petitioner, who is personally present
before the Court along with his wife, where she can think over
about her future. Since corpus Smita is aged about 22 years, she is
sui juris and hence, no fetters can be placed upon her choice of the
person with whom she has to stay. We have therefore, permitted her
to go at her parental house with
the petitioner, who is personally present before the Court along
with his wife
7. Seen
in the above context, there is substance in the Habeas Corpus
petition and the same deserves to be allowed.
8. For
the foregoing reasons, the petition succeeds and it is accordingly
allowed. Rule is made absolute.
9. The
corpus Smitaben is permitted to go
at her parental house with the petitioner, who is personally present
before the Court along with his wife.
10. At
the time of issuance of Notice, this Court directed the petitioner to
deposit Rs.10,000/- as a cost, to show his bona fide, before the
Registry of this Court. In compliance of the said order, the ept has
already deposited Rs.10,000/- before the Registry of this Court.
Since the petition succeeds, Registry is directed to pay back the
amount of Rs.10000/- to the petitioner, upon due verification,
forthwith.
(A.M.KAPADIA, J.)
(BANKIM.N.MEHTA, J.)
shekhar/-
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