By this application, the applicant seeks the following relief:
"[A] Your Lordships may be pleased to admit and allow this petition.
[B] Your Lordships may be pleased to vacate the interim relief granted by this Hon'ble Court on 21.4.2010 in the interest of justice.
[C] Pending hearing and final disposal of this application, Your Lordships may be pleased to direct the investigation officer of Aslali Police Station to recover the documents and ornaments of the applicant mentioned in above application from the custody of accused No.1 (Chintan Rajnikant Patel) and to handover the same to the applicant in the interest of justice.
[D] Be pleased to pass such other and further orders in the interest of justice."
Ms.
Sunita Ahuja, learned advocate for the applicant has submitted that in view of the interim relief granted by this Court, further investigation has been stayed and as such, the investigating officer is not in a position to recover the documents and ornaments of the applicant lying in the custody of the accused No.1. It was submitted that under the circumstances, the interim relief granted vide order dated 21.4.2010 be vacated in the interest of justice.
On the other hand, Mr. Rashmin Jani, learned advocate for the respondents No.2 to 5, that is, original applicants, has submitted that the interim relief has been confirmed after bipartite hearing and as such, there is no question of vacating the same at this stage. It was further submitted that the relief prayed for against the investigating officer to recover the documents and ornaments from the custody of the accused No.1, cannot be granted in the present application wherein the accused No.1 is not a respondent. It was submitted that under the circumstances, the application being misconceived, deserves to be rejected.
Having regard to the submissions advanced by the learned advocates for the respective parties, this Court is of the view that insofar as the principal relief, that is, to vacate the interim relief granted vide order dated 21.4.2010 passed in Criminal Miscellaneous Application No.4024 of 2010 is concerned, the same has been confirmed vide order dated 12.7.2010 after bipartite hearing. Under the circumstances, the said order has no independent existence as the same has been merged in the order dated 12.7.2010 whereby the interim relief granted earlier has been ordered to continue qua the petitioners therein only, namely, the respondents No.2 to 5 herein. The principal relief prayed for, therefore, cannot be granted.
Insofar as the second relief, namely, direction to the investigating officer to recover the documents and ornaments from the custody of the accused No.1 is concerned, the said relief cannot be granted in the present application inasmuch as, the accused No.1 is not a respondent in the present application. However, the grievance voiced by the learned advocate for the applicant to the effect that in the light of the stay granted by this Court, the investigating officer has not proceeded further with the investigation even qua the accused No.1, the same appears to be justified.
It may be noted that vide order dated 21.4.2010, this Court had granted interim relief staying further proceedings of the first information report being C. R. No. I - 62/2011 registered with Aslali Police Station. However, at the time of issuing rule, this Court vide order dated 12.7.2010 had ordered the interim relief to continue qua the present petitioners only. Under the circumstances, it is evident that the earlier order dated 21.4.2010 stands modified to the extent that instead of a blanket stay against further proceedings in respect of the first information report registered vide Aslali Police Station I - C. R. No. 62/2011, the Court has continued the interim relief qua the respondents No.2 to 5, viz., the original petitioners only. Under the circumstances, there is no prohibition against the investigating officer in proceeding further with the investigation into the offence registered vide aforesaid first information report against the other accused. It is, therefore, clarified that it would be open for the investigating officer to proceed with the investigation qua the accused No.1, unless otherwise restrained by any order passed by any court of law.
Subject to the aforesaid, the application is rejected.
Direct Service is permitted.
[HARSHA DEVANI, J.] parmar* Top