Full Judgment Text
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2006:BHC-AS:9634
This Order is modified/corrected by Speaking to Minutes Order dated 07/06/2007
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 CRIMINAL MISC. APPLICATION NO. 1481 OF 2003
IN IN IN
CRIMINAL APPLICATION NO. 2086 OF 1999 CRIMINAL APPLICATION NO. 2086 OF 1999 CRIMINAL APPLICATION NO. 2086 OF 1999
IN IN IN
CRIMINAL WRIT PETITION NO. 245 OF 1993 CRIMINAL WRIT PETITION NO. 245 OF 1993 CRIMINAL WRIT PETITION NO. 245 OF 1993
Mr. Anil Prabhakar Naik ]
Indian Citizen, residing at ]
203, Wilmary, Bamanwada, ]
Vile Parle East, Mumbai 400 099 ]..Petitioner
versus
1. Mr. Chandrakant B. Garware ]
Indian Citizen, residing at ]
IL Palazzo, B. G. Kher Marg, ]
Malbar Hill, Mumbai 400 026 ]
2. Mr. Vasudev Sabaji Shringare]
Indian Citizen, residing at ]
1/78, Tajukaya Mansion, ]
3rd floor, Lalbaug,Mumbai 400012]
3. The Senior Inspector of ]
Police, General Branch, CID ]
Mumbai ]
4. The State of Maharashtra ]..Respondents
Mr. Rafique Dada, Senior Counsel with Smt. Mohana
Nair for the Petitioner.
Mr. H. H. Ponda with Ranjit Shetty, for the
Respondent No.1
Mr. A. R. Patil APP for the Respondents - State.
CORAM : D. G. DESHPANDE, J. CORAM : D. G. DESHPANDE, J. CORAM : D. G. DESHPANDE, J.
DATE : 4TH MAY, 2006 DATE : 4TH MAY, 2006 DATE : 4TH MAY, 2006
ORAL JUDGMENT (IN CHAMBER) : ORAL JUDGMENT (IN CHAMBER) : ORAL JUDGMENT (IN CHAMBER) :
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1. Heard learned counsel for the parties.
2. Original Writ Petition No. 245 of 1993 was
filed by Chandrakant Bhalchandra Garware. The title
of the Petition shows that it was filed under
Article 226 and 227 of the Constitution of the India
and in the matter of Section 482 of the Code of
Criminal Procedure. Prayer in this petition was to
quash and set aside the Order of the Magistrate
dated 24.2.1993 in Case Nos. 1133 to 1135/P/1991
and restraining the Respondent Nos. 1 and 2 or
their agents from receiving any dividend which may
accrue etc. In this Petition No. 245 of 1993 Anil
Prabhakar Naik filed Criminal Application No. 2086
of 1999 for directions. The title of this Criminal
Application shows that it was also filed as in the
matter of Article 227 of the Constitution of India,
and in the matter of Criminal Revision Application
under Section 439, 482 of the Code of Criminal
Procedure.
3. In both these mattes, i.e. Writ Petition
No. 245 of 1993 and Criminal Application No. 2086
of 1999, I have passed an order on 14.2.2000. By
that order, the Writ Petition was allowed in terms
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of prayer clauses (a), (b) and (c) and Criminal
Application was dismissed with costs of Rs.10,000/-.
Now, the present Application No. 1481 of 2003 is
filed by Anil Naik.
4. Mr. Dada, Senior Counsel for the Petitioner
viz. Anil Naik in Criminal Application No. 1481 of
2003 has filed a compilation of the documents, copy
of which is served upon Mr. Ponda, counsel for
Chandrakant Garware. There is an order dated
28.4.1995 of Additional Chief Metropolitan
Magistrate, 37th Court, Esplanade, Bombay, in C.C.
No. 151/N/95. It was an order passed on the
application of Chandrakant Garware to the effect
that he does not want to prosecute any of his
complaints against Anil Naik and that he has entered
into an Agreement and the matter is amicably
settled. Accordingly, as per this Order all the
share certificates were physically handed over to
Anil Naik.
5. Mr. Dada, therefore, states that when share
certificates have been handed over to Anil Naik,
then my order disentitling Anil Naik to receive
dividend warrants, has created complicated situation
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because even though the share certificates are with
Anil Naik, he cannot get the dividends and the
Police Officer has been permitted to collect all the
dividends. Mr. Dada also stated that this Order of
the Magistrate was passed on 28.4.1995 but none of
the parties to the main petition or the application
were aware of this order, and, this order was not
produced before the court, and, therefore, in the
circumstances, the court can interfere.
6. Mr. Ponda relying upon two Judgments of the
Supreme Court reported in (2001)4 Supreme Court (2001)4 Supreme Court (2001)4 Supreme Court
Cases 752 State of Kerala vs. M. M. Manikantan Cases 752 State of Kerala vs. M. M. Manikantan Cases 752 State of Kerala vs. M. M. Manikantan
Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Nair, and (2001)1 Supreme Court Cases 169 Hari Singh
Mann vs. Harbhajan Singh Bajwa and others, Mann vs. Harbhajan Singh Bajwa and others, Mann vs. Harbhajan Singh Bajwa and others,
contended that review of the order is strictly
prohibited and it is not permissible, now, for this
court to pass any order. Mr. Ponda also stated
that nowhere it is stated by Anil Naik that this
order of the Magistrate was not available when this
Petition and Application was finally decided by me.
7. Mr. Dada relied upon two judgments of the
Supreme Court reported in AIR 1988 Supreme Court AIR 1988 Supreme Court AIR 1988 Supreme Court
1531 A. R. Antulay vs. R.S. Nayak and others 1531 A. R. Antulay vs. R.S. Nayak and others, 1531 A. R. Antulay vs. R.S. Nayak and others
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AIR 1994 Supreme Court 1673 Ramchandra Ganpat
and AIR 1994 Supreme Court 1673 Ramchandra Ganpat AIR 1994 Supreme Court 1673 Ramchandra Ganpat
Shinde and another vs. State of Maharashtra and Shinde and another vs. State of Maharashtra and Shinde and another vs. State of Maharashtra and
others others. Mr. Dada, also contended that main Writ others
Petition No. 245 of 1993 was a Writ Petition under
Articles 226 and 227 of the Constitution, and,
therefore, the judgments relied upon by Mr. Ponda,
did not apply.
8. In Hari Singh Mann’s case relied upon by Mr.
Ponda, the respondent No.1 who was a practising
Advocate had filed a Petition under Section 482 of
Criminal Procedure Code for calling for the record
and directing to register a case on the basis of the
complaint dated 14.12.1998. The said petition came
to be disposed of by the High Court on 7.1.1999.
The court found that no case for direct registration
of the case was made out and the preliminary enquiry
was required. The petition was therefore disposed
of with the direction to the SSP to look into the
allegations of the petitioner and if he comes to the
conclusion that some cognizable offence has been
made out then to register the offence. Thereafter,
the respondent No.1 again filed Misc. petition
before the same court, which came to be dismissed on
30.4.1999 by the same Single Judge without notice to
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the other side, and it was recorded that he filed
Criminal complaint on 9.3.1999 in the Court of Mrs.
Neelam Arora JMTC, Kharar, where cognizance was
taken and therefore he does not want to prosecute
the allegations with the SSP, who may be directed
not to take any action. This was an order passed by
the Single Judge. The Supreme Court in the
background of the matter held that no review of an
order was contemplated under Code of Criminal
Procedure, and after the High Court has disposed of
the main petition on 7.1.1999 there was no lis
pending in the High Court wherein the Respondent
could have filed any miscellaneous petition. The
Supreme Court also observed that there is no
provision in the Criminal Procedure Code authorising
the High Court to review its judgment passed either
in exercise of its appellate or revisional or
original criminal jurisdiction and such a power
cannot be exercised with the aid or under the cloak
of Section 482 of the Code.
9. In the another judgment relied upon by Mr.
Ponda (2001)4 Supreme Court Cases 752, as stated
above, in that matter the respondent was prosecuted
for certain offences of the IPC and under the
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provisions of Prevention of Corruption Act. He
filed revision before the Kerala High Court for
quashing the criminal proceedings on the ground that
there was no sanction to prosecute as required under
Section 122 of the Kerala Panchayats Act. That
Criminal M.C. No. 1137 of 2000 was dismissed by
the Single Judge of the Kerala High Court by
judgment dated 31.5.2000 on the ground that there
was proper sanction to prosecute and a prima facie
case was made out. Subsequently, a miscellaneous
petition came to be filed in the said case for
clarification of the above order. The petition was
finally allowed on 13.7.2000 and the same learned
Judge held that there was no proper sanction from
the competent authority and therefore no cognizance
could have been taken. In this background of the
matter, the Supreme Court relying upon the judgment
of Hari Singh Mann, referred to above, observed that
High Court has no powers to review its judgment
either in exercise of its appellate or revisional or
original criminal jurisdiction.
10. Mr. Ponda therefore contended that in view
of these two judgments, the present application
filed by Anil Naik, cannot be entertained.
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11. As against this, Mr. Dada, firstly
contended that the main writ petition No.245 / 1993
was a petition under Articles 226 and 227 of the
Constitution and therefore the petition was decided
by me under those Articles of the Constitution and
as such both the judgments relied upon by Mr.
Ponda, were not applicable. Mr. Dada, also drew my
attention to paragraph 83 of the said Judgment
reported in AIR 1988 Supreme Court 1531, as stated
above, wherein the Supreme Court observed :
".......We proclaim and pronounce that no ".......We proclaim and pronounce that no ".......We proclaim and pronounce that no
man is above the law, but at the same time man is above the law, but at the same time man is above the law, but at the same time
reiterate and declare that no man can be
reiterate and declare that no man can be reiterate and declare that no man can be
denied his rights under the Constitution and denied his rights under the Constitution and denied his rights under the Constitution and
the laws. He has a right to be dealt with the laws. He has a right to be dealt with the laws. He has a right to be dealt with
in accordance with the law and not in in accordance with the law and not in in accordance with the law and not in
derogation of it. This Court, in its derogation of it. This Court, in its derogation of it. This Court, in its
anxiety to facilitate the parties to have a anxiety to facilitate the parties to have a anxiety to facilitate the parties to have a
speedy trial gave directions on 16th speedy trial gave directions on 16th speedy trial gave directions on 16th
February, 1984 as mentioned hereinbefore February, 1984 as mentioned hereinbefore February, 1984 as mentioned hereinbefore
without conscious awareness of the exclusive without conscious awareness of the exclusive
without conscious awareness of the exclusive
jurisdiction of the Special Courts under the jurisdiction of the Special Courts under the jurisdiction of the Special Courts under the
1952 Act and that being the only procedure 1952 Act and that being the only procedure 1952 Act and that being the only procedure
established by law, there can be no established by law, there can be no established by law, there can be no
deviation from the terms of Article 21 of deviation from the terms of Article 21 of deviation from the terms of Article 21 of
the Constitution of India. That is the only the Constitution of India. That is the only the Constitution of India. That is the only
procedure under which it should have been procedure under which it should have been procedure under which it should have been
guided. By reason of giving the directions guided. By reason of giving the directions guided. By reason of giving the directions
on 16th February, 1984 this Court had also on 16th February, 1984 this Court had also on 16th February, 1984 this Court had also
unintentionally caused the appellant the unintentionally caused the appellant the unintentionally caused the appellant the
denial of rights under Article 14 of the denial of rights under Article 14 of the denial of rights under Article 14 of the
Constitution by denying him the equal Constitution by denying him the equal Constitution by denying him the equal
protection of law by being singled out for a protection of law by being singled out for a protection of law by being singled out for a
special procedure not provided for by law. special procedure not provided for by law. special procedure not provided for by law.
When these factors are brought to the notice When these factors are brought to the notice When these factors are brought to the notice
of this Court, even if there are any of this Court, even if there are any of this Court, even if there are any
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technicalities this Court should not feel
technicalities this Court should not feel technicalities this Court should not feel
shackled and decline to rectify that shackled and decline to rectify that shackled and decline to rectify that
injustice or otherwise the injustice noticed injustice or otherwise the injustice noticed injustice or otherwise the injustice noticed
will remain forever a blot on justice. It will remain forever a blot on justice. It will remain forever a blot on justice. It
has been said long time ago that "Actus has been said long time ago that "Actus has been said long time ago that "Actus
Curiae Neminem Gravabit" an act of Court Curiae Neminem Gravabit" an act of Court Curiae Neminem Gravabit" an act of Court
shall prejudice no man. This maxim is shall prejudice no man. This maxim is shall prejudice no man. This maxim is
founded upon justice and good sense and founded upon justice and good sense and founded upon justice and good sense and
affords safe and certain guide for the affords safe and certain guide for the
affords safe and certain guide for the
administration of the law." administration of the law." administration of the law."
My attention was also drawn to paragraphs 100, 105
and 106 of the said judgment, particularly, the
following portion:
"100. ....One of the first and highest "100. ....One of the first and highest "100. ....One of the first and highest
duties of all courts is to take care that duties of all courts is to take care that duties of all courts is to take care that
the act of the court does no injury to any the act of the court does no injury to any the act of the court does no injury to any
of the suitors, and when the expression act of the suitors, and when the expression act of the suitors, and when the expression act
of the court is used, it does not mean of the court is used, it does not mean of the court is used, it does not mean
merely the act of the primary court, of any
merely the act of the primary court, of any merely the act of the primary court, of any
intermediate court of appeal, but the act of intermediate court of appeal, but the act of intermediate court of appeal, but the act of
the court as a whole, from the lowest court the court as a whole, from the lowest court the court as a whole, from the lowest court
which entertains jurisdiction over the which entertains jurisdiction over the which entertains jurisdiction over the
matter up to the highest court which finally matter up to the highest court which finally matter up to the highest court which finally
disposes of the case. It is the duty of the disposes of the case. It is the duty of the disposes of the case. It is the duty of the
aggregage of those Tribunals, if I may use aggregage of those Tribunals, if I may use aggregage of those Tribunals, if I may use
the expression, to take care that no act of the expression, to take care that no act of the expression, to take care that no act of
the court in the course of the whole of the the court in the course of the whole of the
the court in the course of the whole of the
proceedings does an injury to the suitors in proceedings does an injury to the suitors in proceedings does an injury to the suitors in
courts." courts." courts."
"105. ...Quite apart from Section 151, any "105. ...Quite apart from Section 151, any "105. ...Quite apart from Section 151, any
court might have rightly considered itself court might have rightly considered itself court might have rightly considered itself
to possess an inherent power to rectify the to possess an inherent power to rectify the to possess an inherent power to rectify the
mistake which had been inadvertently made." mistake which had been inadvertently made." mistake which had been inadvertently made."
"..Where substantial injustice would "..Where substantial injustice would "..Where substantial injustice would
otherwise, result, the court has, in their otherwise, result, the court has, in their otherwise, result, the court has, in their
Lordships’ opinion, an inherent power to set Lordships’ opinion, an inherent power to set Lordships’ opinion, an inherent power to set
aside its own judgments of condemnation so aside its own judgments of condemnation so aside its own judgments of condemnation so
as to let in bonafide claims by parties..." as to let in bonafide claims by parties..." as to let in bonafide claims by parties..."
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106. To err is human, is the oft quoted 106. To err is human, is the oft quoted 106. To err is human, is the oft quoted
saying. Courts including the apex one are saying. Courts including the apex one are saying. Courts including the apex one are
no exception. To own up the mistake when no exception. To own up the mistake when no exception. To own up the mistake when
judicial satisfaction is reached does not judicial satisfaction is reached does not judicial satisfaction is reached does not
militate against its status or authority. militate against its status or authority. militate against its status or authority.
Perhaps it would enhance both." Perhaps it would enhance both." Perhaps it would enhance both."
12. Another judgment relied upon Mr. Dada,
reported in AIR 1994 Supreme Court 1673, as stated
above, and my attention was drawn to paragraphs 13
and 14, which reads thus:
"13. Respect for law is one of the cardinal "13. Respect for law is one of the cardinal "13. Respect for law is one of the cardinal
principles for an effective operation of the principles for an effective operation of the principles for an effective operation of the
Constitution, law and the popular Constitution, law and the popular Constitution, law and the popular
Government. The faith of the people is the Government. The faith of the people is the Government. The faith of the people is the
source and succour to invigorate justice source and succour to invigorate justice source and succour to invigorate justice
intertwined with the efficacy of law. The
intertwined with the efficacy of law. The intertwined with the efficacy of law. The
principle of justice is ingrained in our principle of justice is ingrained in our principle of justice is ingrained in our
conscience and though ours is a nascent conscience and though ours is a nascent conscience and though ours is a nascent
democracy which has now taken deep roots in democracy which has now taken deep roots in democracy which has now taken deep roots in
our ethos of adjudication - be it judicial, our ethos of adjudication - be it judicial, our ethos of adjudication - be it judicial,
quasi-judicial or administrative as quasi-judicial or administrative as quasi-judicial or administrative as
hallmark, the faith of the people in the hallmark, the faith of the people in the hallmark, the faith of the people in the
efficacy of judicial process would be efficacy of judicial process would be efficacy of judicial process would be
disillusioned, if the parties are permitted disillusioned, if the parties are permitted
disillusioned, if the parties are permitted
to abuse its process and allowed to go scot to abuse its process and allowed to go scot to abuse its process and allowed to go scot
free. It is but the primary duty and free. It is but the primary duty and free. It is but the primary duty and
highest responsibility of the Court to highest responsibility of the Court to highest responsibility of the Court to
correct such orders at the earliest and correct such orders at the earliest and correct such orders at the earliest and
restore the confidence of the litigant restore the confidence of the litigant restore the confidence of the litigant
public, in the purity of fountain of public, in the purity of fountain of public, in the purity of fountain of
justice; remove stains on the efficacy of justice; remove stains on the efficacy of justice; remove stains on the efficacy of
judicial adjudication and respect for rule judicial adjudication and respect for rule judicial adjudication and respect for rule
of law, lest people would lose faith in the of law, lest people would lose faith in the of law, lest people would lose faith in the
Courts and take recourse to Courts and take recourse to Courts and take recourse to
extra-constitutional remedies which is a extra-constitutional remedies which is a extra-constitutional remedies which is a
death-knell to the rule of law. death-knell to the rule of law. death-knell to the rule of law.
14. In M. V. Venkataramana Bhat v. 14. In M. V. Venkataramana Bhat v. 14. In M. V. Venkataramana Bhat v.
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Returning Officer, C.A. No. 3607 of 1993
Returning Officer, C.A. No. 3607 of 1993 Returning Officer, C.A. No. 3607 of 1993
this Court by judgment dated July 30, 1993, this Court by judgment dated July 30, 1993, this Court by judgment dated July 30, 1993,
set aside the election. The facts were that set aside the election. The facts were that set aside the election. The facts were that
one Jaiprakash Rai filed a writ petition in one Jaiprakash Rai filed a writ petition in one Jaiprakash Rai filed a writ petition in
the High Court of Karnataka one day prior to the High Court of Karnataka one day prior to the High Court of Karnataka one day prior to
the date of election of the Pradhan of the the date of election of the Pradhan of the the date of election of the Pradhan of the
Samithi, obtained ad interim order and Samithi, obtained ad interim order and Samithi, obtained ad interim order and
prevented two members to participate and prevented two members to participate and prevented two members to participate and
exercise their franchise in the election of exercise their franchise in the election of
exercise their franchise in the election of
the Pradhan. His candidate was elected with the Pradhan. His candidate was elected with the Pradhan. His candidate was elected with
a margin of one vote. The writ petition a margin of one vote. The writ petition a margin of one vote. The writ petition
was, ultimately, dismissed. The writ was, ultimately, dismissed. The writ was, ultimately, dismissed. The writ
petition under appeal was filed to declare petition under appeal was filed to declare petition under appeal was filed to declare
the election as illegal, void etc. The High the election as illegal, void etc. The High the election as illegal, void etc. The High
Court dismissed it. On appeal, this Court Court dismissed it. On appeal, this Court Court dismissed it. On appeal, this Court
taking notice of the background of these taking notice of the background of these taking notice of the background of these
facts and circumstances held that ad interim facts and circumstances held that ad interim facts and circumstances held that ad interim
order was obtained by abuse of the process order was obtained by abuse of the process order was obtained by abuse of the process
of the Court to help the successful of the Court to help the successful of the Court to help the successful
candidate. Even if the remedy by election candidate. Even if the remedy by election candidate. Even if the remedy by election
petition was available, the Tribunal had no petition was available, the Tribunal had no petition was available, the Tribunal had no
jurisdiction to sit over the correctness of jurisdiction to sit over the correctness of jurisdiction to sit over the correctness of
the order passed by the High Court. the order passed by the High Court. the order passed by the High Court.
Therefore, the High Court alone had to Therefore, the High Court alone had to Therefore, the High Court alone had to
correct it by exercising its power under correct it by exercising its power under correct it by exercising its power under
Art. 226 to prevent such abuse of judicial
Art. 226 to prevent such abuse of judicial Art. 226 to prevent such abuse of judicial
process and should exercise its power of process and should exercise its power of process and should exercise its power of
high responsibility to undo injustice done high responsibility to undo injustice done high responsibility to undo injustice done
to the adversary undoing the effect of the to the adversary undoing the effect of the to the adversary undoing the effect of the
order obtained in abusing the process of order obtained in abusing the process of order obtained in abusing the process of
the Court. The ratio would apply with equal the Court. The ratio would apply with equal the Court. The ratio would apply with equal
force to the facts of this case. Therefore, force to the facts of this case. Therefore, force to the facts of this case. Therefore,
the High Court should have exercised its the High Court should have exercised its the High Court should have exercised its
power under Art. 226 and would have power under Art. 226 and would have
power under Art. 226 and would have
modified the order as prayed for." modified the order as prayed for." modified the order as prayed for."
13. In view of the aforesaid observations of the
Supreme Court, Mr. Dada contended that when the
Writ petition No. 245 of 1993 along with Criminal
Application No. 2086 of 1999 was decided by me by
common order dated 14.2.2000, none of the parties
had brought to my notice that Chandrakant Garware
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applied to the Magistrate for withdrawing all his
criminal cases against Anil Naik and also an order
that came to be passed on his application. From the
order of the Magistrate dated 28.4.1995 (hereinafter
referred to as "the Order of the Magistrate"), it
will be clear that Chandrakant Garware had appeared
before him and prayed that all cases arising out of
C.R. No. 66/1990 be allowed to be withdrawn as the
matter being settled between him and accused Mr. A.
P. Naik & others. Chandrakant Garware also
informed that he has moved the Home Department,
Government of Maharashtra on 6th March 1995 seeking
permission to withdraw all the complaints against
the accused Mr. A. P. Naik. Mr. Chandrakant
Garware also prayed that all the documents such as
shares, papers relating to purchase of flat and
papers like bank papers, share brokers purchase and
sale contracts which were taken charge of by police
under panchnama from the residence of Mr. Anil P.
Naik, be released, and returned to the rightful
owner. After noting these submissions of
Chandrakant Garware and after noting that as per the
principles of Criminal law if the property was
seized during investigation, then, normally it was
to be returned to the owner of the property. The
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Court also noted that all the share certificates
etc. were recovered from the house of accused A.P.
Naik and has also noted that Chandrakant Garware in
his application has mentioned that property be
returned to A.P. Naik from whom it was seized and
therefore passed an order returning all the
documents to A.P. Naik. Operative part of the
Order of the Magistrate is as under:-
" P. I. Shri Jadhav, Applicant, " P. I. Shri Jadhav, Applicant, " P. I. Shri Jadhav, Applicant,
Representative and Respondent present. Representative and Respondent present. Representative and Respondent present.
There is allegation against the police There is allegation against the police There is allegation against the police
officer in respect of missing some documents officer in respect of missing some documents officer in respect of missing some documents
and shares seized on 1st May, 1990 and so I and shares seized on 1st May, 1990 and so I and shares seized on 1st May, 1990 and so I
directed Mr. Jadhav to produce all the directed Mr. Jadhav to produce all the directed Mr. Jadhav to produce all the
original documents shares Certificates, original documents shares Certificates, original documents shares Certificates,
share broker purchase, bank broker, sale share broker purchase, bank broker, sale share broker purchase, bank broker, sale
contracts, blank papers, loose papers seized
contracts, blank papers, loose papers seized contracts, blank papers, loose papers seized
from the residence of respondent Mr. A. P. from the residence of respondent Mr. A. P. from the residence of respondent Mr. A. P.
Naik. In compliance of this Mr. Jadhav Naik. In compliance of this Mr. Jadhav Naik. In compliance of this Mr. Jadhav
produced all the documents and property in produced all the documents and property in produced all the documents and property in
the Court at 11.30 a.m. and Respondent Mr. the Court at 11.30 a.m. and Respondent Mr. the Court at 11.30 a.m. and Respondent Mr.
A. P. Naik, representative of Garware and A. P. Naik, representative of Garware and A. P. Naik, representative of Garware and
P. I. Jadhav directed to complyed the P. I. Jadhav directed to complyed the P. I. Jadhav directed to complyed the
panchnama and documents in presence of all panchnama and documents in presence of all panchnama and documents in presence of all
these abovesaid persons and verify it these abovesaid persons and verify it
these abovesaid persons and verify it
properly, they compare it and satisfied with properly, they compare it and satisfied with properly, they compare it and satisfied with
documents. As mentioned above documents are documents. As mentioned above documents are documents. As mentioned above documents are
seized from Mr. Naik on 1st May, 1990 is seized from Mr. Naik on 1st May, 1990 is seized from Mr. Naik on 1st May, 1990 is
the proper person to take possession of the the proper person to take possession of the the proper person to take possession of the
said property and so I directed P.I. Mr. said property and so I directed P.I. Mr. said property and so I directed P.I. Mr.
Jadhav to return all the above said property Jadhav to return all the above said property Jadhav to return all the above said property
and documents to Mr. Anil P. Naik on and documents to Mr. Anil P. Naik on and documents to Mr. Anil P. Naik on
execution of bond of Rs.5,00,000/- with all execution of bond of Rs.5,00,000/- with all execution of bond of Rs.5,00,000/- with all
usual terms and conditions. While delivery usual terms and conditions. While delivery usual terms and conditions. While delivery
of these original documents I.O. to return of these original documents I.O. to return of these original documents I.O. to return
xerox copies of all these documents and xerox copies of all these documents and xerox copies of all these documents and
property mentioned above with the police property mentioned above with the police property mentioned above with the police
till pendency of this case or its till pendency of this case or its till pendency of this case or its
withdrawal." withdrawal." withdrawal."
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14. Mr. Dada contended that when I heard the
main Writ Petition No. 245 of 1993 and Application
No. 2086 of 1999 filed by Anil Naik, this important
fact was not brought to my notice by anybody, but,
now, pursuant to the enquiry made by the Magistrate
regarding his discharge application, this document
has come on record i.e. the order of the
Magistrate, referred to above, and if this is so,
then, by my order dated 14.2.2000 wherein the claim
of Anil Naik was rejected and Writ Petition was
allowed in terms of prayers (a), (b) and ( c) was
required to be modified. Mr. Dada contended that
since the original share certificates are lying with
the petitioner pursuant to the order of the
Magistrate and since that order of the Magistrate
was not challenged by Chandrakant Garware, obviously
because the order came to be passed by the
Magistrate at the instance of Garware, then, this
was a case where the order dated 14.2.2000 was
required to be modified.
15. Prayers (a), (b) and (c) of the Writ
Petition No. 245 of 1993 were as under:
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(a) "calling for the records in cases
Nos. 1133 to 1135/P/1991 pending
before the Additional Chief
Metropolitan Magistrate, Court No.
37, Esplanade, Bombay, pertaining to
the impugned order dated 24th
February 1993 and to quash and
cancel the said order under Article
227 of the Constitution of India to
correct and rectify the errors
apparent on the face of the record
in respect of the impugned order;
(b) "to issue Writ of Mandamus or any
other writ etc. restraining
respondent No. 1 i.e. Anil Naik
and respondent No.2 i.e. Vasudeo
Shringare and their agents from
receiving any dividend etc. on the
shares and if already received to
deposit / pay the same to respondent
No.3 i.e. Senior Inspector, GB, CB,
CID, Bombay;
(c) "to issue writ of Mandamus or any
other writ etc. authorising
respondent No. 3 and 4 to receive
the accrued and future bonus shares,
dividends and benefits on the shares
of the companies and keep the same
in their custody and to deposit the
amount of the dividends received in
a Savings Bank Joint account;"
Prayer (b) which was allowed has resulted in
restraining Anil Naik from receiving dividends and
if he had received it then direction to him to
deposit the same with the respondent No.3 i.e.
Senior Inspector, GB, CB, CID, Bombay.
16. Mr. Dada contended that by his order dated
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28.4.1995 the Magistrate has passed the impugned
order and allowed all the shares to be given to Anil
Naik and when Chandrakant Garware wanted to withdraw
all his complaints against Anil Naik, then grant of
prayer (b) of the main petition is coming in the way
of Anil Naik in getting the dividends etc.
17. The only contention that was raised by Mr.
Ponda, as stated above, was that the court had no
power of review.
18. It is an admitted fact that this order of
the Magistrate dated 28.4.1995 was not challenged by
Chandrakant Garware before any court. It is also a
fact that this order dated 28.4.1995 of the
Magistrate was not the subject matter of the Writ
Petition No. 245 of 1995, however, that petition
was under Articles 226 and 227 of the Constitution,
because in prayer (a) there was a reference that the
particular order of the Magistrate dated 24.2.1993
be quashed and cancelled under Article 227 of the
Constitution.
19. It will therefore be clear that the Writ
Petition No. 245 of 1993 was filed by Chandrakant
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Garware under Articles 226 and 227 of the
Constitution. Criminal Application No. 2086 of
1999 was filed by Anil Naik in that Writ petition.
In that application also there is reference that it
is under Article 227 of the Constitution. It is
true, that both, in the Writ Petition, as well as,
in Criminal Application there is a reference to
Sections 439 and 482 of the Criminal Procedure Code,
but petition was registered as a Criminal Writ
Petition. Prayer in the Criminal Petition was with
reference to Article 226 of the Constitution. In
the title of both the Writ Petition No. 245 of 1993
and Application No. 2086 of 1999 Articles of the
Constitution were cited, and, the prayer, which I
granted as per prayer (a) of the Petition was with
reference to Article 227 of the Constitution.
Therefore, it is clear that at no point of time Writ
Petition No. 245 of 1993 and the consequent
Application No. 2086 of 1999 were treated by me as
a matter purely under Criminal Procedure Code in the
exercise of jurisdiction of this Court appellate or
revisional or original criminal jurisdiction. Both
these matters were dealt with as Writ Petition and
Application under Constitution of India and
therefore, the judgments cited by Mr. Ponda, are,
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of no help. My order dated 14.2.2000 is an order in
exercise of the constitutional provisions and not
under any provisions of the Criminal Procedure Code.
20. Apart from that, the Magistrate’s order
gives right to Anil Naik to hold all the shares.
That order as observed earlier came to be passed at
the instance of Chandrakant Garware - complainant
who had entered into a settlement agreement with
Anil Naik, and, who took no objection for returning
the shares to Anil Naik by giving express consent in
that regard. It is also an admitted fact that none
of the parties to the Writ Petition or the Criminal
Application, brought to my notice this order of the
Magistrate of 28.4.1995. If this order was brought
to my notice then the petition would not have been
allowed at all or at any rate prayer (b) of the
petition reproduced hereinabove, could not have been
granted.
21. Now, the factual position is Anil Naik holds
all the shares, he cannot get the dividend nor
Chandrakant Garware is getting dividend and all the
dividend is authorised to be collected by the Senior
Inspector GB CB CID, Bombay. When Chandrakant
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Garware by applying to the Magistrate gave his
consent that he has no objection for the shares to
be given to Anil Naik and he wanted to withdraw all
his cases against Anil Naik then it is Anil Naik who
had become entitled to the subsequent dividends.
22. Since both the parties did not bring to my
notice this order of the Magistrate dated 28.4.1995,
it has resulted in serious miscarriage of justice.
Inspite of being armed with the order of the
Magistrate in his favour Anil Naik is not able to
get dividends because of the grant of prayer (b) of
the main petition. The judgment cited by Mr. Dada,
clearly shows that patent injustice is caused to a
party on account of an order of the court. The
court has power to rectify the mistake. No other
submissions were made by the parties, apart from the
above.
23. In the result, I, pass the following order :
ORDER ORDER ORDER
. Criminal Application No. 1481 of 2003 is
allowed in terms of prayer clause (b). It is
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clarified that Anil Naik will be entitled to receive
all the dividends on all the shares in his
possession, for all the period, for which he has not
received any dividends. C.C. expedited.
(D.G. DESHPANDE, J. )
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2006:BHC-AS:9634
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 CRIMINAL MISC. APPLICATION NO. 1481 OF 2003
IN IN IN
CRIMINAL APPLICATION NO. 2086 OF 1999 CRIMINAL APPLICATION NO. 2086 OF 1999 CRIMINAL APPLICATION NO. 2086 OF 1999
IN IN IN
CRIMINAL WRIT PETITION NO. 245 OF 1993 CRIMINAL WRIT PETITION NO. 245 OF 1993 CRIMINAL WRIT PETITION NO. 245 OF 1993
Mr. Anil Prabhakar Naik ]
Indian Citizen, residing at ]
203, Wilmary, Bamanwada, ]
Vile Parle East, Mumbai 400 099 ]..Petitioner
versus
1. Mr. Chandrakant B. Garware ]
Indian Citizen, residing at ]
IL Palazzo, B. G. Kher Marg, ]
Malbar Hill, Mumbai 400 026 ]
2. Mr. Vasudev Sabaji Shringare]
Indian Citizen, residing at ]
1/78, Tajukaya Mansion, ]
3rd floor, Lalbaug,Mumbai 400012]
3. The Senior Inspector of ]
Police, General Branch, CID ]
Mumbai ]
4. The State of Maharashtra ]..Respondents
Mr. Rafique Dada, Senior Counsel with Smt. Mohana
Nair for the Petitioner.
Mr. H. H. Ponda with Ranjit Shetty, for the
Respondent No.1
Mr. A. R. Patil APP for the Respondents - State.
CORAM : D. G. DESHPANDE, J. CORAM : D. G. DESHPANDE, J. CORAM : D. G. DESHPANDE, J.
DATE : 4TH MAY, 2006 DATE : 4TH MAY, 2006 DATE : 4TH MAY, 2006
ORAL JUDGMENT (IN CHAMBER) : ORAL JUDGMENT (IN CHAMBER) : ORAL JUDGMENT (IN CHAMBER) :
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1. Heard learned counsel for the parties.
2. Original Writ Petition No. 245 of 1993 was
filed by Chandrakant Bhalchandra Garware. The title
of the Petition shows that it was filed under
Article 226 and 227 of the Constitution of the India
and in the matter of Section 482 of the Code of
Criminal Procedure. Prayer in this petition was to
quash and set aside the Order of the Magistrate
dated 24.2.1993 in Case Nos. 1133 to 1135/P/1991
and restraining the Respondent Nos. 1 and 2 or
their agents from receiving any dividend which may
accrue etc. In this Petition No. 245 of 1993 Anil
Prabhakar Naik filed Criminal Application No. 2086
of 1999 for directions. The title of this Criminal
Application shows that it was also filed as in the
matter of Article 227 of the Constitution of India,
and in the matter of Criminal Revision Application
under Section 439, 482 of the Code of Criminal
Procedure.
3. In both these mattes, i.e. Writ Petition
No. 245 of 1993 and Criminal Application No. 2086
of 1999, I have passed an order on 14.2.2000. By
that order, the Writ Petition was allowed in terms
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of prayer clauses (a), (b) and (c) and Criminal
Application was dismissed with costs of Rs.10,000/-.
Now, the present Application No. 1481 of 2003 is
filed by Anil Naik.
4. Mr. Dada, Senior Counsel for the Petitioner
viz. Anil Naik in Criminal Application No. 1481 of
2003 has filed a compilation of the documents, copy
of which is served upon Mr. Ponda, counsel for
Chandrakant Garware. There is an order dated
28.4.1995 of Additional Chief Metropolitan
Magistrate, 37th Court, Esplanade, Bombay, in C.C.
No. 151/N/95. It was an order passed on the
application of Chandrakant Garware to the effect
that he does not want to prosecute any of his
complaints against Anil Naik and that he has entered
into an Agreement and the matter is amicably
settled. Accordingly, as per this Order all the
share certificates were physically handed over to
Anil Naik.
5. Mr. Dada, therefore, states that when share
certificates have been handed over to Anil Naik,
then my order disentitling Anil Naik to receive
dividend warrants, has created complicated situation
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because even though the share certificates are with
Anil Naik, he cannot get the dividends and the
Police Officer has been permitted to collect all the
dividends. Mr. Dada also stated that this Order of
the Magistrate was passed on 28.4.1995 but none of
the parties to the main petition or the application
were aware of this order, and, this order was not
produced before the court, and, therefore, in the
circumstances, the court can interfere.
6. Mr. Ponda relying upon two Judgments of the
Supreme Court reported in (2001)4 Supreme Court (2001)4 Supreme Court (2001)4 Supreme Court
Cases 752 State of Kerala vs. M. M. Manikantan Cases 752 State of Kerala vs. M. M. Manikantan Cases 752 State of Kerala vs. M. M. Manikantan
Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Nair, and (2001)1 Supreme Court Cases 169 Hari Singh
Mann vs. Harbhajan Singh Bajwa and others, Mann vs. Harbhajan Singh Bajwa and others, Mann vs. Harbhajan Singh Bajwa and others,
contended that review of the order is strictly
prohibited and it is not permissible, now, for this
court to pass any order. Mr. Ponda also stated
that nowhere it is stated by Anil Naik that this
order of the Magistrate was not available when this
Petition and Application was finally decided by me.
7. Mr. Dada relied upon two judgments of the
Supreme Court reported in AIR 1988 Supreme Court AIR 1988 Supreme Court AIR 1988 Supreme Court
1531 A. R. Antulay vs. R.S. Nayak and others 1531 A. R. Antulay vs. R.S. Nayak and others, 1531 A. R. Antulay vs. R.S. Nayak and others
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AIR 1994 Supreme Court 1673 Ramchandra Ganpat
and AIR 1994 Supreme Court 1673 Ramchandra Ganpat AIR 1994 Supreme Court 1673 Ramchandra Ganpat
Shinde and another vs. State of Maharashtra and Shinde and another vs. State of Maharashtra and Shinde and another vs. State of Maharashtra and
others others. Mr. Dada, also contended that main Writ others
Petition No. 245 of 1993 was a Writ Petition under
Articles 226 and 227 of the Constitution, and,
therefore, the judgments relied upon by Mr. Ponda,
did not apply.
8. In Hari Singh Mann’s case relied upon by Mr.
Ponda, the respondent No.1 who was a practising
Advocate had filed a Petition under Section 482 of
Criminal Procedure Code for calling for the record
and directing to register a case on the basis of the
complaint dated 14.12.1998. The said petition came
to be disposed of by the High Court on 7.1.1999.
The court found that no case for direct registration
of the case was made out and the preliminary enquiry
was required. The petition was therefore disposed
of with the direction to the SSP to look into the
allegations of the petitioner and if he comes to the
conclusion that some cognizable offence has been
made out then to register the offence. Thereafter,
the respondent No.1 again filed Misc. petition
before the same court, which came to be dismissed on
30.4.1999 by the same Single Judge without notice to
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the other side, and it was recorded that he filed
Criminal complaint on 9.3.1999 in the Court of Mrs.
Neelam Arora JMTC, Kharar, where cognizance was
taken and therefore he does not want to prosecute
the allegations with the SSP, who may be directed
not to take any action. This was an order passed by
the Single Judge. The Supreme Court in the
background of the matter held that no review of an
order was contemplated under Code of Criminal
Procedure, and after the High Court has disposed of
the main petition on 7.1.1999 there was no lis
pending in the High Court wherein the Respondent
could have filed any miscellaneous petition. The
Supreme Court also observed that there is no
provision in the Criminal Procedure Code authorising
the High Court to review its judgment passed either
in exercise of its appellate or revisional or
original criminal jurisdiction and such a power
cannot be exercised with the aid or under the cloak
of Section 482 of the Code.
9. In the another judgment relied upon by Mr.
Ponda (2001)4 Supreme Court Cases 752, as stated
above, in that matter the respondent was prosecuted
for certain offences of the IPC and under the
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provisions of Prevention of Corruption Act. He
filed revision before the Kerala High Court for
quashing the criminal proceedings on the ground that
there was no sanction to prosecute as required under
Section 122 of the Kerala Panchayats Act. That
Criminal M.C. No. 1137 of 2000 was dismissed by
the Single Judge of the Kerala High Court by
judgment dated 31.5.2000 on the ground that there
was proper sanction to prosecute and a prima facie
case was made out. Subsequently, a miscellaneous
petition came to be filed in the said case for
clarification of the above order. The petition was
finally allowed on 13.7.2000 and the same learned
Judge held that there was no proper sanction from
the competent authority and therefore no cognizance
could have been taken. In this background of the
matter, the Supreme Court relying upon the judgment
of Hari Singh Mann, referred to above, observed that
High Court has no powers to review its judgment
either in exercise of its appellate or revisional or
original criminal jurisdiction.
10. Mr. Ponda therefore contended that in view
of these two judgments, the present application
filed by Anil Naik, cannot be entertained.
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11. As against this, Mr. Dada, firstly
contended that the main writ petition No.245 / 1993
was a petition under Articles 226 and 227 of the
Constitution and therefore the petition was decided
by me under those Articles of the Constitution and
as such both the judgments relied upon by Mr.
Ponda, were not applicable. Mr. Dada, also drew my
attention to paragraph 83 of the said Judgment
reported in AIR 1988 Supreme Court 1531, as stated
above, wherein the Supreme Court observed :
".......We proclaim and pronounce that no ".......We proclaim and pronounce that no ".......We proclaim and pronounce that no
man is above the law, but at the same time man is above the law, but at the same time man is above the law, but at the same time
reiterate and declare that no man can be
reiterate and declare that no man can be reiterate and declare that no man can be
denied his rights under the Constitution and denied his rights under the Constitution and denied his rights under the Constitution and
the laws. He has a right to be dealt with the laws. He has a right to be dealt with the laws. He has a right to be dealt with
in accordance with the law and not in in accordance with the law and not in in accordance with the law and not in
derogation of it. This Court, in its derogation of it. This Court, in its derogation of it. This Court, in its
anxiety to facilitate the parties to have a anxiety to facilitate the parties to have a anxiety to facilitate the parties to have a
speedy trial gave directions on 16th speedy trial gave directions on 16th speedy trial gave directions on 16th
February, 1984 as mentioned hereinbefore February, 1984 as mentioned hereinbefore February, 1984 as mentioned hereinbefore
without conscious awareness of the exclusive without conscious awareness of the exclusive
without conscious awareness of the exclusive
jurisdiction of the Special Courts under the jurisdiction of the Special Courts under the jurisdiction of the Special Courts under the
1952 Act and that being the only procedure 1952 Act and that being the only procedure 1952 Act and that being the only procedure
established by law, there can be no established by law, there can be no established by law, there can be no
deviation from the terms of Article 21 of deviation from the terms of Article 21 of deviation from the terms of Article 21 of
the Constitution of India. That is the only the Constitution of India. That is the only the Constitution of India. That is the only
procedure under which it should have been procedure under which it should have been procedure under which it should have been
guided. By reason of giving the directions guided. By reason of giving the directions guided. By reason of giving the directions
on 16th February, 1984 this Court had also on 16th February, 1984 this Court had also on 16th February, 1984 this Court had also
unintentionally caused the appellant the unintentionally caused the appellant the unintentionally caused the appellant the
denial of rights under Article 14 of the denial of rights under Article 14 of the denial of rights under Article 14 of the
Constitution by denying him the equal Constitution by denying him the equal Constitution by denying him the equal
protection of law by being singled out for a protection of law by being singled out for a protection of law by being singled out for a
special procedure not provided for by law. special procedure not provided for by law. special procedure not provided for by law.
When these factors are brought to the notice When these factors are brought to the notice When these factors are brought to the notice
of this Court, even if there are any of this Court, even if there are any of this Court, even if there are any
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technicalities this Court should not feel
technicalities this Court should not feel technicalities this Court should not feel
shackled and decline to rectify that shackled and decline to rectify that shackled and decline to rectify that
injustice or otherwise the injustice noticed injustice or otherwise the injustice noticed injustice or otherwise the injustice noticed
will remain forever a blot on justice. It will remain forever a blot on justice. It will remain forever a blot on justice. It
has been said long time ago that "Actus has been said long time ago that "Actus has been said long time ago that "Actus
Curiae Neminem Gravabit" an act of Court Curiae Neminem Gravabit" an act of Court Curiae Neminem Gravabit" an act of Court
shall prejudice no man. This maxim is shall prejudice no man. This maxim is shall prejudice no man. This maxim is
founded upon justice and good sense and founded upon justice and good sense and founded upon justice and good sense and
affords safe and certain guide for the affords safe and certain guide for the
affords safe and certain guide for the
administration of the law." administration of the law." administration of the law."
My attention was also drawn to paragraphs 100, 105
and 106 of the said judgment, particularly, the
following portion:
"100. ....One of the first and highest "100. ....One of the first and highest "100. ....One of the first and highest
duties of all courts is to take care that duties of all courts is to take care that duties of all courts is to take care that
the act of the court does no injury to any the act of the court does no injury to any the act of the court does no injury to any
of the suitors, and when the expression act of the suitors, and when the expression act of the suitors, and when the expression act
of the court is used, it does not mean of the court is used, it does not mean of the court is used, it does not mean
merely the act of the primary court, of any
merely the act of the primary court, of any merely the act of the primary court, of any
intermediate court of appeal, but the act of intermediate court of appeal, but the act of intermediate court of appeal, but the act of
the court as a whole, from the lowest court the court as a whole, from the lowest court the court as a whole, from the lowest court
which entertains jurisdiction over the which entertains jurisdiction over the which entertains jurisdiction over the
matter up to the highest court which finally matter up to the highest court which finally matter up to the highest court which finally
disposes of the case. It is the duty of the disposes of the case. It is the duty of the disposes of the case. It is the duty of the
aggregage of those Tribunals, if I may use aggregage of those Tribunals, if I may use aggregage of those Tribunals, if I may use
the expression, to take care that no act of the expression, to take care that no act of the expression, to take care that no act of
the court in the course of the whole of the the court in the course of the whole of the
the court in the course of the whole of the
proceedings does an injury to the suitors in proceedings does an injury to the suitors in proceedings does an injury to the suitors in
courts." courts." courts."
"105. ...Quite apart from Section 151, any "105. ...Quite apart from Section 151, any "105. ...Quite apart from Section 151, any
court might have rightly considered itself court might have rightly considered itself court might have rightly considered itself
to possess an inherent power to rectify the to possess an inherent power to rectify the to possess an inherent power to rectify the
mistake which had been inadvertently made." mistake which had been inadvertently made." mistake which had been inadvertently made."
"..Where substantial injustice would "..Where substantial injustice would "..Where substantial injustice would
otherwise, result, the court has, in their otherwise, result, the court has, in their otherwise, result, the court has, in their
Lordships’ opinion, an inherent power to set Lordships’ opinion, an inherent power to set Lordships’ opinion, an inherent power to set
aside its own judgments of condemnation so aside its own judgments of condemnation so aside its own judgments of condemnation so
as to let in bonafide claims by parties..." as to let in bonafide claims by parties..." as to let in bonafide claims by parties..."
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106. To err is human, is the oft quoted 106. To err is human, is the oft quoted 106. To err is human, is the oft quoted
saying. Courts including the apex one are saying. Courts including the apex one are saying. Courts including the apex one are
no exception. To own up the mistake when no exception. To own up the mistake when no exception. To own up the mistake when
judicial satisfaction is reached does not judicial satisfaction is reached does not judicial satisfaction is reached does not
militate against its status or authority. militate against its status or authority. militate against its status or authority.
Perhaps it would enhance both." Perhaps it would enhance both." Perhaps it would enhance both."
12. Another judgment relied upon Mr. Dada,
reported in AIR 1994 Supreme Court 1673, as stated
above, and my attention was drawn to paragraphs 13
and 14, which reads thus:
"13. Respect for law is one of the cardinal "13. Respect for law is one of the cardinal "13. Respect for law is one of the cardinal
principles for an effective operation of the principles for an effective operation of the principles for an effective operation of the
Constitution, law and the popular Constitution, law and the popular Constitution, law and the popular
Government. The faith of the people is the Government. The faith of the people is the Government. The faith of the people is the
source and succour to invigorate justice source and succour to invigorate justice source and succour to invigorate justice
intertwined with the efficacy of law. The
intertwined with the efficacy of law. The intertwined with the efficacy of law. The
principle of justice is ingrained in our principle of justice is ingrained in our principle of justice is ingrained in our
conscience and though ours is a nascent conscience and though ours is a nascent conscience and though ours is a nascent
democracy which has now taken deep roots in democracy which has now taken deep roots in democracy which has now taken deep roots in
our ethos of adjudication - be it judicial, our ethos of adjudication - be it judicial, our ethos of adjudication - be it judicial,
quasi-judicial or administrative as quasi-judicial or administrative as quasi-judicial or administrative as
hallmark, the faith of the people in the hallmark, the faith of the people in the hallmark, the faith of the people in the
efficacy of judicial process would be efficacy of judicial process would be efficacy of judicial process would be
disillusioned, if the parties are permitted disillusioned, if the parties are permitted
disillusioned, if the parties are permitted
to abuse its process and allowed to go scot to abuse its process and allowed to go scot to abuse its process and allowed to go scot
free. It is but the primary duty and free. It is but the primary duty and free. It is but the primary duty and
highest responsibility of the Court to highest responsibility of the Court to highest responsibility of the Court to
correct such orders at the earliest and correct such orders at the earliest and correct such orders at the earliest and
restore the confidence of the litigant restore the confidence of the litigant restore the confidence of the litigant
public, in the purity of fountain of public, in the purity of fountain of public, in the purity of fountain of
justice; remove stains on the efficacy of justice; remove stains on the efficacy of justice; remove stains on the efficacy of
judicial adjudication and respect for rule judicial adjudication and respect for rule judicial adjudication and respect for rule
of law, lest people would lose faith in the of law, lest people would lose faith in the of law, lest people would lose faith in the
Courts and take recourse to Courts and take recourse to Courts and take recourse to
extra-constitutional remedies which is a extra-constitutional remedies which is a extra-constitutional remedies which is a
death-knell to the rule of law. death-knell to the rule of law. death-knell to the rule of law.
14. In M. V. Venkataramana Bhat v. 14. In M. V. Venkataramana Bhat v. 14. In M. V. Venkataramana Bhat v.
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Returning Officer, C.A. No. 3607 of 1993
Returning Officer, C.A. No. 3607 of 1993 Returning Officer, C.A. No. 3607 of 1993
this Court by judgment dated July 30, 1993, this Court by judgment dated July 30, 1993, this Court by judgment dated July 30, 1993,
set aside the election. The facts were that set aside the election. The facts were that set aside the election. The facts were that
one Jaiprakash Rai filed a writ petition in one Jaiprakash Rai filed a writ petition in one Jaiprakash Rai filed a writ petition in
the High Court of Karnataka one day prior to the High Court of Karnataka one day prior to the High Court of Karnataka one day prior to
the date of election of the Pradhan of the the date of election of the Pradhan of the the date of election of the Pradhan of the
Samithi, obtained ad interim order and Samithi, obtained ad interim order and Samithi, obtained ad interim order and
prevented two members to participate and prevented two members to participate and prevented two members to participate and
exercise their franchise in the election of exercise their franchise in the election of
exercise their franchise in the election of
the Pradhan. His candidate was elected with the Pradhan. His candidate was elected with the Pradhan. His candidate was elected with
a margin of one vote. The writ petition a margin of one vote. The writ petition a margin of one vote. The writ petition
was, ultimately, dismissed. The writ was, ultimately, dismissed. The writ was, ultimately, dismissed. The writ
petition under appeal was filed to declare petition under appeal was filed to declare petition under appeal was filed to declare
the election as illegal, void etc. The High the election as illegal, void etc. The High the election as illegal, void etc. The High
Court dismissed it. On appeal, this Court Court dismissed it. On appeal, this Court Court dismissed it. On appeal, this Court
taking notice of the background of these taking notice of the background of these taking notice of the background of these
facts and circumstances held that ad interim facts and circumstances held that ad interim facts and circumstances held that ad interim
order was obtained by abuse of the process order was obtained by abuse of the process order was obtained by abuse of the process
of the Court to help the successful of the Court to help the successful of the Court to help the successful
candidate. Even if the remedy by election candidate. Even if the remedy by election candidate. Even if the remedy by election
petition was available, the Tribunal had no petition was available, the Tribunal had no petition was available, the Tribunal had no
jurisdiction to sit over the correctness of jurisdiction to sit over the correctness of jurisdiction to sit over the correctness of
the order passed by the High Court. the order passed by the High Court. the order passed by the High Court.
Therefore, the High Court alone had to Therefore, the High Court alone had to Therefore, the High Court alone had to
correct it by exercising its power under correct it by exercising its power under correct it by exercising its power under
Art. 226 to prevent such abuse of judicial
Art. 226 to prevent such abuse of judicial Art. 226 to prevent such abuse of judicial
process and should exercise its power of process and should exercise its power of process and should exercise its power of
high responsibility to undo injustice done high responsibility to undo injustice done high responsibility to undo injustice done
to the adversary undoing the effect of the to the adversary undoing the effect of the to the adversary undoing the effect of the
order obtained in abusing the process of order obtained in abusing the process of order obtained in abusing the process of
the Court. The ratio would apply with equal the Court. The ratio would apply with equal the Court. The ratio would apply with equal
force to the facts of this case. Therefore, force to the facts of this case. Therefore, force to the facts of this case. Therefore,
the High Court should have exercised its the High Court should have exercised its the High Court should have exercised its
power under Art. 226 and would have power under Art. 226 and would have
power under Art. 226 and would have
modified the order as prayed for." modified the order as prayed for." modified the order as prayed for."
13. In view of the aforesaid observations of the
Supreme Court, Mr. Dada contended that when the
Writ petition No. 245 of 1993 along with Criminal
Application No. 2086 of 1999 was decided by me by
common order dated 14.2.2000, none of the parties
had brought to my notice that Chandrakant Garware
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applied to the Magistrate for withdrawing all his
criminal cases against Anil Naik and also an order
that came to be passed on his application. From the
order of the Magistrate dated 28.4.1995 (hereinafter
referred to as "the Order of the Magistrate"), it
will be clear that Chandrakant Garware had appeared
before him and prayed that all cases arising out of
C.R. No. 66/1990 be allowed to be withdrawn as the
matter being settled between him and accused Mr. A.
P. Naik & others. Chandrakant Garware also
informed that he has moved the Home Department,
Government of Maharashtra on 6th March 1995 seeking
permission to withdraw all the complaints against
the accused Mr. A. P. Naik. Mr. Chandrakant
Garware also prayed that all the documents such as
shares, papers relating to purchase of flat and
papers like bank papers, share brokers purchase and
sale contracts which were taken charge of by police
under panchnama from the residence of Mr. Anil P.
Naik, be released, and returned to the rightful
owner. After noting these submissions of
Chandrakant Garware and after noting that as per the
principles of Criminal law if the property was
seized during investigation, then, normally it was
to be returned to the owner of the property. The
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Court also noted that all the share certificates
etc. were recovered from the house of accused A.P.
Naik and has also noted that Chandrakant Garware in
his application has mentioned that property be
returned to A.P. Naik from whom it was seized and
therefore passed an order returning all the
documents to A.P. Naik. Operative part of the
Order of the Magistrate is as under:-
" P. I. Shri Jadhav, Applicant, " P. I. Shri Jadhav, Applicant, " P. I. Shri Jadhav, Applicant,
Representative and Respondent present. Representative and Respondent present. Representative and Respondent present.
There is allegation against the police There is allegation against the police There is allegation against the police
officer in respect of missing some documents officer in respect of missing some documents officer in respect of missing some documents
and shares seized on 1st May, 1990 and so I and shares seized on 1st May, 1990 and so I and shares seized on 1st May, 1990 and so I
directed Mr. Jadhav to produce all the directed Mr. Jadhav to produce all the directed Mr. Jadhav to produce all the
original documents shares Certificates, original documents shares Certificates, original documents shares Certificates,
share broker purchase, bank broker, sale share broker purchase, bank broker, sale share broker purchase, bank broker, sale
contracts, blank papers, loose papers seized
contracts, blank papers, loose papers seized contracts, blank papers, loose papers seized
from the residence of respondent Mr. A. P. from the residence of respondent Mr. A. P. from the residence of respondent Mr. A. P.
Naik. In compliance of this Mr. Jadhav Naik. In compliance of this Mr. Jadhav Naik. In compliance of this Mr. Jadhav
produced all the documents and property in produced all the documents and property in produced all the documents and property in
the Court at 11.30 a.m. and Respondent Mr. the Court at 11.30 a.m. and Respondent Mr. the Court at 11.30 a.m. and Respondent Mr.
A. P. Naik, representative of Garware and A. P. Naik, representative of Garware and A. P. Naik, representative of Garware and
P. I. Jadhav directed to complyed the P. I. Jadhav directed to complyed the P. I. Jadhav directed to complyed the
panchnama and documents in presence of all panchnama and documents in presence of all panchnama and documents in presence of all
these abovesaid persons and verify it these abovesaid persons and verify it
these abovesaid persons and verify it
properly, they compare it and satisfied with properly, they compare it and satisfied with properly, they compare it and satisfied with
documents. As mentioned above documents are documents. As mentioned above documents are documents. As mentioned above documents are
seized from Mr. Naik on 1st May, 1990 is seized from Mr. Naik on 1st May, 1990 is seized from Mr. Naik on 1st May, 1990 is
the proper person to take possession of the the proper person to take possession of the the proper person to take possession of the
said property and so I directed P.I. Mr. said property and so I directed P.I. Mr. said property and so I directed P.I. Mr.
Jadhav to return all the above said property Jadhav to return all the above said property Jadhav to return all the above said property
and documents to Mr. Anil P. Naik on and documents to Mr. Anil P. Naik on and documents to Mr. Anil P. Naik on
execution of bond of Rs.5,00,000/- with all execution of bond of Rs.5,00,000/- with all execution of bond of Rs.5,00,000/- with all
usual terms and conditions. While delivery usual terms and conditions. While delivery usual terms and conditions. While delivery
of these original documents I.O. to return of these original documents I.O. to return of these original documents I.O. to return
xerox copies of all these documents and xerox copies of all these documents and xerox copies of all these documents and
property mentioned above with the police property mentioned above with the police property mentioned above with the police
till pendency of this case or its till pendency of this case or its till pendency of this case or its
withdrawal." withdrawal." withdrawal."
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14. Mr. Dada contended that when I heard the
main Writ Petition No. 245 of 1993 and Application
No. 2086 of 1999 filed by Anil Naik, this important
fact was not brought to my notice by anybody, but,
now, pursuant to the enquiry made by the Magistrate
regarding his discharge application, this document
has come on record i.e. the order of the
Magistrate, referred to above, and if this is so,
then, by my order dated 14.2.2000 wherein the claim
of Anil Naik was rejected and Writ Petition was
allowed in terms of prayers (a), (b) and ( c) was
required to be modified. Mr. Dada contended that
since the original share certificates are lying with
the petitioner pursuant to the order of the
Magistrate and since that order of the Magistrate
was not challenged by Chandrakant Garware, obviously
because the order came to be passed by the
Magistrate at the instance of Garware, then, this
was a case where the order dated 14.2.2000 was
required to be modified.
15. Prayers (a), (b) and (c) of the Writ
Petition No. 245 of 1993 were as under:
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(a) "calling for the records in cases
Nos. 1133 to 1135/P/1991 pending
before the Additional Chief
Metropolitan Magistrate, Court No.
37, Esplanade, Bombay, pertaining to
the impugned order dated 24th
February 1993 and to quash and
cancel the said order under Article
227 of the Constitution of India to
correct and rectify the errors
apparent on the face of the record
in respect of the impugned order;
(b) "to issue Writ of Mandamus or any
other writ etc. restraining
respondent No. 1 i.e. Anil Naik
and respondent No.2 i.e. Vasudeo
Shringare and their agents from
receiving any dividend etc. on the
shares and if already received to
deposit / pay the same to respondent
No.3 i.e. Senior Inspector, GB, CB,
CID, Bombay;
(c) "to issue writ of Mandamus or any
other writ etc. authorising
respondent No. 3 and 4 to receive
the accrued and future bonus shares,
dividends and benefits on the shares
of the companies and keep the same
in their custody and to deposit the
amount of the dividends received in
a Savings Bank Joint account;"
Prayer (b) which was allowed has resulted in
restraining Anil Naik from receiving dividends and
if he had received it then direction to him to
deposit the same with the respondent No.3 i.e.
Senior Inspector, GB, CB, CID, Bombay.
16. Mr. Dada contended that by his order dated
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28.4.1995 the Magistrate has passed the impugned
order and allowed all the shares to be given to Anil
Naik and when Chandrakant Garware wanted to withdraw
all his complaints against Anil Naik, then grant of
prayer (b) of the main petition is coming in the way
of Anil Naik in getting the dividends etc.
17. The only contention that was raised by Mr.
Ponda, as stated above, was that the court had no
power of review.
18. It is an admitted fact that this order of
the Magistrate dated 28.4.1995 was not challenged by
Chandrakant Garware before any court. It is also a
fact that this order dated 28.4.1995 of the
Magistrate was not the subject matter of the Writ
Petition No. 245 of 1995, however, that petition
was under Articles 226 and 227 of the Constitution,
because in prayer (a) there was a reference that the
particular order of the Magistrate dated 24.2.1993
be quashed and cancelled under Article 227 of the
Constitution.
19. It will therefore be clear that the Writ
Petition No. 245 of 1993 was filed by Chandrakant
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Garware under Articles 226 and 227 of the
Constitution. Criminal Application No. 2086 of
1999 was filed by Anil Naik in that Writ petition.
In that application also there is reference that it
is under Article 227 of the Constitution. It is
true, that both, in the Writ Petition, as well as,
in Criminal Application there is a reference to
Sections 439 and 482 of the Criminal Procedure Code,
but petition was registered as a Criminal Writ
Petition. Prayer in the Criminal Petition was with
reference to Article 226 of the Constitution. In
the title of both the Writ Petition No. 245 of 1993
and Application No. 2086 of 1999 Articles of the
Constitution were cited, and, the prayer, which I
granted as per prayer (a) of the Petition was with
reference to Article 227 of the Constitution.
Therefore, it is clear that at no point of time Writ
Petition No. 245 of 1993 and the consequent
Application No. 2086 of 1999 were treated by me as
a matter purely under Criminal Procedure Code in the
exercise of jurisdiction of this Court appellate or
revisional or original criminal jurisdiction. Both
these matters were dealt with as Writ Petition and
Application under Constitution of India and
therefore, the judgments cited by Mr. Ponda, are,
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of no help. My order dated 14.2.2000 is an order in
exercise of the constitutional provisions and not
under any provisions of the Criminal Procedure Code.
20. Apart from that, the Magistrate’s order
gives right to Anil Naik to hold all the shares.
That order as observed earlier came to be passed at
the instance of Chandrakant Garware - complainant
who had entered into a settlement agreement with
Anil Naik, and, who took no objection for returning
the shares to Anil Naik by giving express consent in
that regard. It is also an admitted fact that none
of the parties to the Writ Petition or the Criminal
Application, brought to my notice this order of the
Magistrate of 28.4.1995. If this order was brought
to my notice then the petition would not have been
allowed at all or at any rate prayer (b) of the
petition reproduced hereinabove, could not have been
granted.
21. Now, the factual position is Anil Naik holds
all the shares, he cannot get the dividend nor
Chandrakant Garware is getting dividend and all the
dividend is authorised to be collected by the Senior
Inspector GB CB CID, Bombay. When Chandrakant
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Garware by applying to the Magistrate gave his
consent that he has no objection for the shares to
be given to Anil Naik and he wanted to withdraw all
his cases against Anil Naik then it is Anil Naik who
had become entitled to the subsequent dividends.
22. Since both the parties did not bring to my
notice this order of the Magistrate dated 28.4.1995,
it has resulted in serious miscarriage of justice.
Inspite of being armed with the order of the
Magistrate in his favour Anil Naik is not able to
get dividends because of the grant of prayer (b) of
the main petition. The judgment cited by Mr. Dada,
clearly shows that patent injustice is caused to a
party on account of an order of the court. The
court has power to rectify the mistake. No other
submissions were made by the parties, apart from the
above.
23. In the result, I, pass the following order :
ORDER ORDER ORDER
. Criminal Application No. 1481 of 2003 is
allowed in terms of prayer clause (b). It is
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clarified that Anil Naik will be entitled to receive
all the dividends on all the shares in his
possession, for all the period, for which he has not
received any dividends. C.C. expedited.
(D.G. DESHPANDE, J. )
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