1. Rule. Ms. Punani learned APP waives service of notice of Rule on behalf of respondent no.1 and Mr. Tejas M.Barot, learned advocate waives service of notice of Rule on behalf of respondent no.2. With the consent of learned advocates for the parties, Rule is fixed forthwith.
2. The petitioner by way of this petition has approached this Court for quashing and setting aside the order dated 23.03.2012, passed by the Additional Civil Judge & Additional Judicial Magistrate First Class, Patan, whereunder provision of Section 97 of Criminal Procedure Code for search warrant was issued at the instance of the present respondent no.2, on the ground that she does not want to go and live with the present respondent no.2 and the order of her production may not now be required to be subsisting in any manner, as she is adult and entitled to listen to her conscious and desire.
3. The Court on 17.04.2012 (Coram: Ananat S.Dave, J.) passed an order which is read as under;
Heard learned counsel for the applicant and learned APP.
Considering the material on record including the affidavit [page 14 of the compilation) and, further, though a complaint is filed before Sihori Police Station on 2.4.2012, but it is yet not registered, issue notice returnable on 10.5.2012.
Ad-interim relief in terms of paragraph 11(b).
Learned APP waives service on behalf of the State.
Direct service is permitted qua the private respondent.
On 07.03.2013 also this Court (Coram: K.M.Thaker, J.) passed the following orders:
1. Heard Mr. V.G. Popat, learned advocate for the petitioner, Mr. Barot, learned advocate for the respondent No.2 and Ms. Raval, learned APP for respondent State.
2. In the facts and circumstances of the case, irrespective of the issue about petitioner's locus the Court wants to be satisfied about the safety of the concerned girl rather it has become imperative that the Court should be satisfied about safety of the concerned girl and also about her whereabouts.
2.1 Despite previous instructions, the girl has not remained present and it is claimed by the respondent that she has not been allowed and she is not being allowed to reach the Court.
3. Mr. V.G. Popat, learned advocate for the petitioner would submit that the petitioner is voluntarily staying away from the private respondent.
4. Despite specific instruction today, the petitioner has not remained present before the Court and Mr. Barot, learned advocate has pleaded no instruction.
5. However Mr. V.G. Popat, learned advocate for the petitioner submitted that he will provide the correct, complete and present address of the concerned girl where the police may contact the concerned girl and record her statement.
6. In that view of the matter, it is directed that learned advocate for the petitioner shall provide correct, complete and present address of the concerned girl to the learned APP.
7. Learned APP in turn, will instruct the concerned police station i.e. Sihori Police Station to contact the concerned girl and record her statement particularly in light of the background of the case, the police may inquire and find out the person with whom the girl is staying at present and whether she has voluntarily staying with respondent No.2 and her relation with said respondent No.2.
7.1 The police will also make necessary inquiry at such other places which may be considered appropriate to find out the correct facts related to the concerned girl and on such inquiry police will make report on the next date of hearing.
8. S.O. to 15.3.2013. Ad-interim relief, if any, granted earlier and if it is operation until now then, the same to continue till then.
9. A copy of this order may be made available to learned APP for necessary instruction.
4. Today, learned advocate has submitted that the petitioner-lady is present in person and she stated that she would like to reside with one Shri Pravinji Devchandji Thakor of Village-Jabadiya, Taluka Disa, with whom she is married and out of this wedlock a male child is born. The Court requested learned APP to ascertain explicitly from the lady and Court also ascertained from her, she confirmed that she would like to stay with the said gentleman whom she is married.
5. In light of this, Shri Tajas M.Barot, learned advocate for respondent no.2, at whose behest the order dated 23.03.2012 was made, under instruction, submitted that he has no objection, if the order dated 23.03.2012 passed by the Additional Civil Judge & Additional Judicial Magistrate First Class, Patan along with subsequent proceedings are quashed and set aside.
6. Orders accordingly. The order dated 23.03.2012 along with subsequent proceedings are quashed and set aside, in light of the facts and circumstances of the case. Rule made absolute.
(S.R.BRAHMBHATT, J.) Pankaj Page 4 of 4