Cr. W.P. 560 of 2009 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Cr. W.P. 560 of 2009 DATE OF DECISION 25.5.2009 Om Parkash Khosla ......PETITIONER VERSUS State of Punjab and ors. ......RESPONDENTS PRESENT: Mr. AR Sidhu,Sr.Advocate with Mr. Rajesh Narg, Advocate. M.M.S.BEDI,J. The instant petition has been filed for recalling order dated 14.8.2008 (Annexure P-1) granting an interim relief to respondent No.2 Minesh Devendra Shah directing that he would be released on bail on furnishing bail bonds to the satisfaction of the learned Sub Divisional Judicial Magistrate Batala/ Duty Magistrate. Learned counsel for the petitioner has submitted that the petitioner- complainant had filed a complaint against respondent No.2. He was arrested pursuant to the arrest warrants from Bombay. It has been contended that the interim release was ordered by this court and Minesh Devendra Shah was released on interim bail by the Judicial Magistrate, Ist Class Batala on 15.5.2008, adjourning the proceedings till 21.8.2008 for awaiting the further orders from the High Court. On 17.10.2008, the wife of Minesh Devendra Shah had withdrawn the petition. Learned counsel for the petitioner has requested for recalling of the interim order on the ground that the accused has been able to abuse Cr. W.P. 560 of 2009 2 the process of the court in the garb of the interim order, which was obtained on the ground that the Settlement Commission had granted immunity to Minesh Devenera Shah whereas, as a matter of fact, the subject matter of the proceedings in the Settlement Commission and that of the complaint u/s 156(3) Cr.P.C. are different. Attention has been drawn to the order dated 24.2.2009 (Annexure P-9) passed by the learned S.D.J.M. Batala, wherein it has been observed that after having been released on bail, the accused has not come present in the court for a single day nor he has joined the investigation in the case registered against him. The statement of ASI Bishambar Dass has been recorded by the Judicial Magistrate on 24.2.2009 (Annexure P-9). After going through all the facts and circumstances of this case, it appears that the order passed by this court on 14.8.2008 (P-1) was only an interim order. After taking advantage of the said interim order, the wife of the accused withdrew the said petition, as such no opinion was expressed by this court regarding the subject matter of the Settlement Commission or the right of her husband to be released on bail as per the provisions of Sections 437,438 and 439 Cr.P.C. It was for respondent No.2 Minesh Devendra Shah to avail the remedy u/s 437 Cr.P.C. by adopting the due procedure of law. It was also open to him to avail the remedy u/s 438 Cr.P.C. It is pertinent to observe here that the interim order passed by this court on 14.8.2008 cannot be deemed to be an order u/s 439 Cr.P.C. The interim order dated 14.8.2008 was challenged by the petitioner before an Apex Court but the said petition had been withdrawn with liberty to take recourse to appropriate proceedings as are available to the petitioner in accordance with law. Cr. W.P. 560 of 2009 3 In view of the what has been discussed above, the petition for review of the interim order dated 14.8.2008 (P-1) is hereby dismissed with the following clarifications:- 1) The Criminal Writ Petition No.785 of 2008 has not been decided on merits by this court but has been disposed of as withdrawn on 17.10.2008. 2) Nothing mentioned in the interim order dated 14.8.2008 will be deemed to be an expression of opinion regarding the subject matter of the Settlement Commission or the subject matter of the complaint filed by the petitioner-complainant. 3) The order passed by the learned Judicial Magistrate on 15.8.2008 in compliance with the order passed by this court on 14.8.2008 would be deemed to be only an interim relief granted to Minesh Devendra Shah and will not be deemed to be an order passed u/s 437, 438 or 439 Cr.P.C. 4) In case Minesh Devendra Shah is required to be taken into custody for the completion of the investigation, as per the provisions of Chapter XII Cr.P.C., it will be open to the complainant or the investigating agency to take him in to custody. However, this direction is certainly subject to the legal rights of Minesh Devendra Shah or subject to any order obtained by him u/s 438 Cr.P.C. from any other court or from this court. May 25 ,2009 ( M.M.S.BEDI ) TSM JUDGE