JUDGMENT - DESHPANDE D.G., J.:---This petition is filed under Article 226 of the Constitution of India and the prayer therein is that this Hon'ble Court to issue a writ of habeas corpus against the respondents and direct them to produce the petitioner's wife Manisha before this Court.

2. When the petition came before us on 27-8-2002 Mr. Agarwal, appearing for respondent Nos. 1 and 2, raised preliminary objection about maintainability of the writ petition on the ground that the petitioner had availed of the facility under section 97 of the Cri.P.C. His so called wife was produced before the Magistrate. She was questioned by the Magistrate and on being satisfied that the girl wants to leave with father, she was allowed to go. Therefore, according to Mr. Agarwal, this petition was not maintainable because alternate remedy was resorting to and exhausted by the petitioner. However, on that day Mr. Shirodkar produced the album of photographs wherein the girl Manisha was shown with the petitioner in number of photographs. We, therefore, directed to produce the girl before the Court by our order dated 27-8-2002. Accordingly the girl was produced by the police. We question her in chamber. Her statement was recorded and since the girl refused her status as a wife of the petitioner and expressed her desire that she wanted to go with her father, the girl was allowed to go. As such so far as the facts and merits are concerned, nothing remain in this petition.

3. However, while passing our order dated 27-8-2002 we had clarified that all the objections raised by Mr. Agarwal and the case laws cited by him supporting thereof would be considered at the time of final hearing. When the girl was allowed to go and nothing remaining the petition, we asked Mr. Agarwal whether he continues with his preliminary objections and wants decision from this Court. He replied in the affirmative and hence this order.

4. To be precise, the objection raised by Mr. Agarwal is that when a party has restored to the remedy under section 97 of the Cri.P.C. and has failed therein, can be approach the High Court for writ of habeas corpus. According to Mr. Agarwal, in such eventuality the High Court should not entertain the petition for habeas corpus. Mr. Agarwal cited the following authorities of the Supreme Court in support of his contentions :---

(1) A.I.R. 1956 S.C. 108 (Smt. Vidya Verma v. Dr. Shiv Narain Verma)1,

(2) A.I.R. 1964 S.C. 1625 (Md. Ikram Hussain v. The State of U.P. others)2,

(3) A.I.R 1973 S.C. 2684 (Kanu Sanyal v. District Magistrate others)3,

(4) 1976(3) S.C.C. 234 (Gian Devi v. The Supt. Nari Niketan Delhi others)4,

(5) A.I.R. 1980 S.C. 1749 (Kumari Kiran v. Anand Pratap Singh others)5,

(6) A.I.R. 1999 S.C. 3284 (Rajiv Bhatia etc. v. Government of N.C.I. of Delhi others)6,

(7) A.I.R. 1981 S.C. 1026 (Capt. Dushyant Somal v. Smt. Sushma Somal others)7,

and other cases of the different High Courts.

5. As against this it was contended by Mr. Shirodkar that even if the aforesaid judgments or the Supreme Court are taken into consideration, no where it is laid down that the High Court ceases to have any power of issuing writ of habeas corpus merely because the party or the petitioner has availed of his remedy under section 97 of the Cri.P.C. Mr. Shirodkar also contended that the powers of the High Court in this regard are not restricted or circumvented by the provisions of section 97 of the Cri.P.C. He further contended that the criteria applied in cases under section 97 of the Cri.P.C. and the criteria to be applied for issuing writ of habeas corpus by the High Court are totally different and, therefore, desirability of such a petition after the person has exhausted the remedy under section 97 of the Cri.P.C. cannot be equated with the powers of the High Court for issuing writ of habeas corpus in appropriate cases.

6. He also contended that there is no prohibition in law that no person can file a petition for habeas corpus merely because he has availe

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