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SCR.A/372/2010 1/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CRIMINAL APPLICATION No. 372 of 2010
=========================================================
VASANT
S. ADANI Petitioner (s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance
:
MR
MUKUL ROHATGI, Sr. Counsel with Mr.Siddharth Luthra with Mr.B.B.Nayak
with Vikram Nankani with Mr.Ishwar Nankani with Mr.Nigam R. Shukla
for Petitioner (s) : 1,
MR PK JANI, LD. PP FOR respondent STATE
MR KHAN,
LD. PP (MUMBAI) FOR Respondent CBI
MR. RAVANI
FOR Respondent
CBI
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 02/03/2010
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
Draft
amendment granted.
Upon
hearing Mr.Mukul Rohatgi, learned Sr. Counsel with Mr.Nayak, learned
Counsel for the petitioner, Mr.Ravani, learned Special Counsel
appearing with Mr.Khan, learned Public Prosecutor, High Court of
Mumbai, for CBI, Mumbai and Mr.P.K.Jani, learned Public Prosecutor,
it appears that at the relevant point of time, when the petition was
filed, the prayer was for a writ of habeas corpus, the business
assigned to this Court, as per the roster. However, in view of the
draft amendment, the prayers are made by the petitioner, which
includes quashing of F.I.R. dated 25.4.2008, which, as per the case
of the respondent CBI, was the basis of arrest. Such prayer may be
maintained under Article 226 of the Constitution of India, but as
per the present roster, Special Criminal Application(s) under
Articles 226 and 227 of the Constitution of India for quashing of
complaint(s) would be required to be placed before appropriate
Bench.
The
learned Sr. Counsel submitted that the petitioner may be permitted
to convert the present petition as petition under Article 226 of the
Constitution of India, by not pressing the prayer of writ of habeas
corpus, since it is a question of liberty and the prayer is also
made for quashing of the complaint.
Whereas,
the learned Counsel for CBI resisted the conversion by contending
that this Court may decide first as to whether the writ of habeas
corpus would be maintainable or not when it was an arrest under the
relevant provisions of the Statute and the petitioner had the remedy
of moving the Court under Article 226 of the Constitution or the
bail before regular Court.
Considering
the facts and circumstances, we permit the petitioner to convert the
present petition under Article 226 of the Constitution of India for
the remaining prayers as the prayer for seeking writ of habeas
corpus is not pressed.
Office will be required to place the matter before appropriate
Bench.
Before
parting with, we may record that the learned Sr. Counsel for the
petitioner made serious grievance for the conduct on the part of the
officer concerned of CBI of not obeying the order of this Court,
though it was produced before him and also to the extent of not
producing the accused before the nearest Magistrate within 24 hours
as per the mandate of the Constitution.
Mr.Ravani,
learned Special Counsel appearing for CBI, submitted that proper
explanation shall be submitted on the said aspects.
We
find the aforesaid aspects may be examined, if found proper, by the
Court, who is to decide the petition under Article 226 of the
Constitution of India for quashing of the complaint and other
consequential reliefs. Office to place the matter before
appropriate Bench.
(Jayant
Patel, J.)
2.3.2010
(Rajesh H. Shukla, J.)
vinod
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