Learned advocate for the petitioner has relying upon the observation of this Court made in order dated 07.03.2011 passed in Special Criminal Application No.345 of 2007 with Criminal Misc. Application No.2322 of 2006 contended that unfortunately the Trial Court as well as Appellate Court have failed in appreciating the direction which no one could have ignored. It is indeed unfortunate that Exhibit-49 application is decided in utter disregard of the direction issued by this Court and as a result thereof, the petitioner's application Exhibit-19 itself is rendered infructuous. The order passed by the Trial Court as well as Appellate Court are, therefore, per se contrary to the provision of law and unsustainable.
Learned APP could not controvert this submission of learned advocate for the petitioner.
This Court is of the prima facie view that the direction issued by this Court cited hereinabove is unequivocally clear and leave no rooms for any ambiguity whatsoever. The Trial Court as well as Appellate Court has erred in not carrying out them in its true spirit and letter. Therefore, let there be a notice to the respondent-complainant, returnable on 28.02.2012. In the mean time and till the returnable date there shall be ad-interim-relief. The proceeding qua Criminal Case No.2370 of 2006 may remain stayed.
This order of ad-interim-relief is required to be passed for the following reasons namely;
(i) The Court is of the prima facie view that learned advocate for the petitioner is justified in contending that when the Exhibit-19 application is pending, the Court could not have passed order rendering the same infructuous while making order below Exhibit-49, which is impugned before the Court.
(ii) It is pertinent to note that this Court vide order dated 07.03.2011 passed in Special Criminal Application No.345 of 2007 with Criminal Misc. Application No.2322 of 2006, has quashed and set aside the order, issuing process namely taking cognizance and the offence and directed the Trial Court to take into consideration the D.S.P.'s communication to the accused-petitioner, then without reflecting thereon, the Trial Court could not have passed an order whereby not only the cognizance is not taken but the applicant Exhibit-19 is rendered infructuous without affording an opportunity of being heard thereon, so far as the petitioner is concerned.
(iii) The Exhibit-19 remain to be examined which contains specific challenge to issuance of process i.e. taking up cognizance against the Police Officer dehors or in absence of valid sanction under Section 197 of the Criminal Procedure Code.
(iv) In my prima facie view, the order impugned, therefore, is untenable in eye of law. Hence, the aforesaid interim order is passed.
Direct service is permitted.
(S.R.BRAHMBHATT, J.) Pankaj Top