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Judgment
A.M. Kapadia, J.—Rule. Mr. Dabhi, learned APP appears and waives service of notice of Rule on behalf of the Respondents.
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.
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) Mukesh bhai 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 BikeNo.GJ 23 I 9492. On 11.11.2010, the Petitioner filed application before the Anand Town Police Station, but notaction 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the probable accused, but it was not considered by the Chief Judicial Magistrate and the same has been disposed of as withdrawn.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.
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 there after, the Notice came to be issued to the respondents.
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 Courtin compliance of the direction issued by this Court. We have therefore, permitted him to produce the corpus before us.
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 22years 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 issui 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
Seen in the above context, there is substance in the Habeas Corpus petition and the same deserves to be allowed.
For the foregoing reasons, the petition succeeds and it is accordingly allowed. Rule is made absolute.
The corpus Smitaben is permitted to go at her parental house with the Petitioner, who is personally present beforethe Court along with his wife.
At the time of issuance of Notice, this Court directed the Petitioner to deposit Rs. 10,000/-as a cost, to showhis bona fide, before the Registry of this Court. Incompliance of the said order, the ept has already depositedRs.10,000/-before the Registry of this Court. Since thepetition succeeds, Registry is directed to pay back the amount of Rs. 10000/-to the Petitioner, upon due verification, forthwith.