Poonam Srivastava, J. - (1.) Heard Sri Gopal Chaturvedi, Senior Advocate, assisted by Sri M.C. Chaturvedi Advocate, for the applicant and learned A.G.A. for the State.
(2.) Counter and rejoinder affidavits have been exchanged and this application has come up for final hearing.
(3.) The facts giving rise to the dispute is that Hari Prasad Gopi Krishna Jewelers Pvt. Limited had filed this application for release of certain articles seized by the opposite party no. 2 on the pointing out of Mr. Mukesh Agarwal, brother of Mukul Agarwal, opposite party No. 3. The F.I.R. was lodged in case Crime No. 600 of 1997, under Sections 457, 380 I.P.C., Police Station Nazibabad, District Bijnor on 20.11 1997 against unknown persons and a list of stolen property was given to the Investigating Officer. During course of investigation, one accused namely Angrej Singh was taken into custody, who admitted that he had committed theft in the shop of the applicant at Gorakhpur in the year 1994 and sold it to the opposite party no. 3 namely Dhani Jewelers Chowk Bazar, Nazibabad, Police Station Nazibabad, District Bijnor and also disclosed that the stolen property from the shop of Dhani Jewelers, opposite party no. 3 was sold to the applicant Hari Prasad Gopi Krishna Jewelers Pvt. Limited, Gorakhpur. The statement of the accused is annexed as Annexure-3 to the affidavit. On the basis of the statement of the accused, a search was conducted and in the course of search and investigation, a number of jewelry and other costly articles were taken away from the shop of the applicant by police party on the pointing out of Mr. Mukesh Agarwal. A copy of the recovery memo is annexed as Annexure-5 to the affidavit. It is submitted in para 8 of the affidavit that during course of investigation, the applicant submitted all the receipts, cash memos and other relevant documents relating to the articles seized from the shop of the applicant at Gorakhpur and identity was fixed by the applicant. After completing the investigation, a charge sheet was submitted against the accused persons on 18,2,1999 and cognizance was taken by the learned Magistrate in case No. 478 of 1999. An application for release of the seized jewelry was moved on behalf of the applicant as well as opposite party no, 3. The application was rejected by the court below vide order dated 11.6.1999. Thereafter another application was moved by the opposite party no. 3 before the trial court on 30.8.1999 for summoning the police investigation report and also for releasing the seized articles. The application was entertained vide order dated 1.9.1999. The opposite party no. 2 was directed to produce the entire report. An objection was filed by the applicant praying not to release the jewelry in favour of the opposite party no. 3 unless and until investigation is completed by the Investigating Agency. A copy of the objection is annexed as Annexure-13 to the affidavit. It has been emphatically argued by the counsel for the applicant that dacoity was committed in the applicant's shop regarding which a First Information Report was registered at case Crime No. 341 of 2004, under Sections 395, 397 I.P.C. The applicant submitted that he has also given a list of stolen articles on the very next day i.e. 20.10.1994. However, the court has refused to release the articles by means of the impugned order which is challenged in this application and also a prayer to release the seized articles has been made.;