Mahrukh Iqbal vs Through: M/S Areeb Kawoosa
2021 Latest Caselaw 1011 j&K/2

     COURT OF JAMMU & KASHMIR AND LADAKH
                              AT SRINAGAR

             WP(C) no.114/2021 with CrlM no.961/2021
                               &
             CCP(S) no.396/2021 & CrlM No.970/2021

Mahrukh Iqbal
                                             ...Petitioner

                   Through:     M/s Areeb Kawoosa, Aatir Kawoosa,
                                and Baba W. Musharraf, Advocates.
                         v.
UT of J&K & ors.
                                             ...Respondents

                   Through:     Mr. B. A. Dar, Sr. AAG for 1 to 3.
                                None appears for the private
                                respondents.

Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey

                                Order
                              06.09.2021

1.    Ms. Tanushree (IPS), Superintendent of Police, East Zone,
Srinagar, is personally present before the Court alongwith Mr. Sachit
Sharma, SDPO, Sub-Division, Nehru Park; Mr. Sajad Assad, SHO,
Police Station, Nehru Park; and Mr. Umaid Majid, Sr. Prosecuting
Officer.

2.    Facts

of the case are narrated in detail in order of this Court dated 31.08.2021. Those need not be reiterated. It would suffice to say that the petitioner approached the Court with this petition, agonizingly yearning for recovery and custody of her a few days' old female child, who was born on 07.08.2021 after the petitioner had undergone C- section at JLNM Hospital, Srinagar, and allegedly taken away from her by the private respondents herein (here in-laws) on 11.08.2021 when she herself had been locked in a room in the matrimonial home at Vakil Colony, Nishat, Srinagar. She herself was recovered from the

house by Women's Police and was taken to Women Police Station, Rambagh. On 27.08.2021 respondent no.5, Mr. Zahoor Ahmad Shah, who is a practicing Advocate of this Court, undertook to produce the child before the Court at 4.30 PM. An order to that effect was, accordingly, passed. But he failed to turn back. Thereafter, on 31.08.2021, when the case was again taken up for consideration, private respondents 5, 6 and 7 personally appeared before the Court. They categorically refused to part with the custody of the child in favour of the petitioner. This Court passed appropriate directions to the Police for recovery of the child and posted the matter on 01.09.2021. However, the child could not be recovered. Then the case was posted on 03.09.2021. Yet again, the child was not recovered. The reports of the Police concerned depicted that the matter, apparently, was not as simple as it was thought to be. Appropriate directions were made by the Court on these two days, including coordinating Cyber Police with the efforts to trace the private respondents and recover the child.

3. Today, in terms of the previous order, the petition has again come up for consideration before this Court. The report of the Registrar Judicial states that on 05.09.2021 (Sunday) at 05.20 PM Ms. Tanushree, SP, East, SDPO, Nehru Park, and SHO, Police Station, Nehru Park, after recovering the infant and after conducting her medical check-up and other formalities, produced her before him whereafter her custody, in compliance to the orders of this Court dated 27.08.2021, 31.08.2021, 01.09.2021 and 03.09.2021, was handed over to to the petitioner, Ms. Mahrukh Iqbal, who was duly identified by her counsel, Mr. Areeb Javed Kawoosa, Advocate, and that to this effect the petitioner's statement was recorded wherein she, inter alia, undertook to take due care of her child.

4. The statement so tendered by the petitioner, i.e., the mother of the child, before the Registrar Judicial, placed on record, has been perused by the Court. Therein she has, among other things, stated that the female infant was got medically examined in her presence by the Police at Government Children Hospital / G. B. Pant Hospital,

Srinagar in compliance to the directions of the Court and that she has taken the custody of the female child in good health condition. Her undertaking furnished before the Registrar Judicial is also on record. Therein she has stated that she will take the best possible care of her child whose custody has been handed over to her by the Registrar Judicial, Srinagar Wing, on 05.09.2021 at 05.20 PM.

5. Mr. B. A. Dar, Sr. AAG, seeks permission to file the report of the Police on the compliance made by them of the Court orders dated 31.08.2021, 01.09.2021 and 03.09.2021. Permission sought is granted and the report is taken on record.

6. The aforesaid report reveals that on 31.08.2021 the petitioner lodged a written complaint before the Police whereon the Police registered FIR no.84/2021 under the relevant Sections of the Penal Code and started investigation. The compliance report gives details of the raids and searches made by the Police with a view to recovering the child. It depicts that raids/searches were conducted at Khrew, Pampore, Pulwama, Handwara, Baramulla, Baba-Demb, Chattabal, Bagi Mehtab, Hyderpora, Dalgate, Brein and Soura, and in all some 50 suspects and households were raided and questioned. The accused Ms. Rabiya Shah and Sibgatullah Shah, are stated to have had switched off their phones. Finally on the basis of a technological analyses, it is reported that house of one Ms. Nazneen Ashfaq wife of Ashfaq Ahmad Lone resident of Iqbal Colony, Budshah Nagar, Nowgam, was raided, which was found locked from outside, and the infant was recovered from the custody of Ms. Rabiya Shah wife of Mr. Zahoor Ahmad Shah, who was accompanied by her son Sibgatullah Shah, both residents of Vakil Colony, Brein. The house owner is stated to have had gone underground, leaving the house at the disposal of the accused, who were hiding inside the house holding the infant for past several days. It is reported that on recovery, the health condition of the child was found satisfactory. Requisite memos, as mentioned in the report, were prepared in presence of the Executive Magistrate, Shri Nazir Ahmad, and the child was immediately shifted to G. B. Panth

Hospital for medical check-up and as per the Doctors the child was found fit and healthy. The infant was produced before the Registrar Judicial of the Court on 05.09.2021 who, in turn, handed her over to the mother, Ms. Mahrukh Iqbal. Photocopies of the medical record of the petitioner from the JLNM Hospital as well as the Doctor's report on the medical check up of the child enclosed with the police report have also been perused.

9. I heard learned counsel for the petitioner and Mr. B. A. Dar, learned Sr. AAG.

10. Primarily the petitioner in the petition has made two prayers: recovery of the female infant and restoration of the child's custody to her and a direction to the Police to register a case against the private respondents. So far as the second prayer is concerned, in law, the petitioner was supposed to approach the Police with whatever complaint she had. This was expressed by the Court in its order dated 31.08.2021 as well, giving a liberty to the petitioner to lodge such complaint before the concerned Police Station. As per the Police report, she filed the complaint and a case FIR No.84 under Sections 315, 342, 343, 344, 345, 363, 364, 365, 498-A, 506 IPC stands registered by the Police. That satisfies the second prayer of the petitioner. So far as her first prayer made in the petition is concerned, the child stands recovered and handed over to her. Thus that prayer also stands satisfied. So nothing survives in this petition and nothing more is required to be done therein. Learned counsel for the petitioner sought to cite and rely upon certain judgments, particularly, the judgment of Allahabad High Court in Zahirul Hassan v. State of UP, Cri. L. J. 230. Since the Court, primarily bearing in mind the welfare of the child, has already ordered handing over custody of the child to the mother and, in fact, the order stands duly implemented, the judgments need not be discussed herein to derive support.

11. In light of the above, this petition is disposed of alongwith the connected miscellaneous application. Orders passed by this Court on

27.08.2021, 31.08.2021, 01.09.2021 and 03.09.2021 shall form part of this order.

12. Before parting with the file, the Court wishes to express its appreciations for the Police team, headed by Ms. Tanushree (IPS), Superintendent of Police, East Zone, Srinagar; Mr. Sachit Sharma, SDPO, Sub-Division, Nehru Park, Srinagar; Mr. Sajad Assad, Inspector, SHO, Police Station, Nehru Park, Srinagar; Mr. Umaid Majid, Sr. Prosecuting Officer, and all other officers and men who remained associated with the untiring effort undertaken in compliance of the orders of the Court to recover the suckling female child of the petitioner who had hardly opened her eyes in this world and had to undergo such a ordeal. The team of Police officers and officials, without doubt, have done a laudable work. The Court wishes their dedicated work to be commended. A copy of this order is, therefore, directed to be forwarded to the Director General of Police.

CCP(S) no.396/2021 & CrlM No.970/2021:

13. Await appearance of the respondents.

14. List on 30.09.2021. Record of the main case be placed along.

(Ali Mohammad Magrey) Judge Srinagar 06.09.2021 Syed Ayaz Hussain, Secy.

SYED AYAZ HUSSAIN 2021.09.07 10:46 I attest to the accuracy and integrity of this document