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Bombay HC: LOC & PO Quashed of MRA Veteran – Landmark Judgement

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION CRIMINAL

WRIT PETITION NO. 3209 OF 2014

Mr Sandip Shankarlal Kedia ….                Petitioner.

V/s

 The State of Maharashtra and Another ……     Respondents.

 

Mr. Niranjan Mundargi i/b Pavan S. Patil for the Petitioner.

Mrs. M.M. Deshmukh, APP for the State

Mr. A.H.H. Ponda, Senior Counsel i/b Mr. Prakash Mahadik for Respondent No.2

 

CORAM: V. M. KANADE & SMT. ANUJA PRABHUDESSAI, JJ.

Order reserved on : 24th November, 2014

Order pronounced on : 1st December, 2014 P.C.: (Per V.M. Kanade, J.)

 

1.  By this Petition which is filed under Articles 226 and 227 of the Constitution of India and under section 482 of the Criminal Procedure Code, the Petitioner is seeking an appropriate writ, order or direction for quashing the impugned order of proclamation dated 03/03/2014 passed by the learned Metropolitan Magistrate, 66th Court, Andheri in C.R. No.263 of 2012 alongwith warrants; bailable & nonbailable which have been issued by the learned Magistrate and also for appropriate writ, order or direction for quashing and setting aside the impugned lookout Notice/Circular/Order which has been issued by the police in connection with C.R. No.263 of 2012.

2. Brief facts which are relevant for the purpose of deciding this Writ Petition are as under:-

3. The Petitioner, who is a resident of Dubai, has filed this Petition for quashing the order of proclamation which has been issued by the learned Metropolitan Magistrate under section 82 of the Criminal Procedure Code, which has been issued in connection with an FIR which has been registered with Amboli Police Station, Mumbai vide C.R. No.263 of 2012 which was lodged at the instance of Respondent No.2 who is a wife of the Petitioner for the offences punishable under sections 406, 498A and 34 of the Indian Penal Code and also lookout notice which has been issued by the police.

4. Prosecution had filed an application dated 26/2/2014 before the learned Metropolitan Magistrate, 66th Court, Andheri that in pursuance to the order dated 26/01/2014 non-bailable warrants were issued against the Petitioner on account of his failure to attend the Court and his noncooperation in reporting before the Investigating Officer of the Amboli Police Station despite issuance of various communications and summonses, resulted in evasion, concealment and abscondance and, therefore, case under section 82 of the Cr.P.C. was made out

5. The learned Magistrate, by an impugned order dated 03/03/2014, directed issuance of written proclamation. Respondent No.1 on 06/05/2014 completed publication of proclamation.

6. It is the case of the Petitioner that the said order of issuance of proclamation is contrary to the provisions of section 82 itself and the mandatory procedure laid down under the said provisions has not been followed, resulting in violation of his fundamental right under Article 21 of the Constitution of India. The Petitioner filed an application dated 08/05/2014 before the Magistrate for recalling/canceling the said proclamation. However, the said application is still pending and is not decided and, therefore, the Petitioner was constrained to approach this Court by filing Writ Petition under Article 226 of the Constitution of India for violation of his fundamental right under Articles 14, 19 and 21 of the Constitution of India.

7. Preliminary objection was raised by Shri Abad Ponda, the learned Senior Counsel appearing on behalf of Respondent No.2 on 04/09/2014 regarding maintainability of the Petition on the ground that the Petitioner had already filed a Petition challenging the lookout notice which was issued and the said Petition was withdrawn unconditionally and it was not open for the Petitioner to challenge it again. He also submitted that the present Petition is barred by the principle of res judicata.

8. This Court by a detailed order dated 04/09/2014 rejected the contention of Respondent No.2 and held that the Petition is maintainable

9. Today, again, Shri Abad Ponda, the learned Senior Counsel appearing on behalf of Respondent No.2 raised another preliminary objection regarding maintainability of the Petition. He submitted that the order which was passed under section 82 was an order regarding issuance of process to compel the appearance under Chapter VI of the Cr.P.C. He submitted that the order of issuance of process by the Magistrate on a private complaint which is filed also is in the nature of process to compel the appearance. He submitted that it has been held by the Apex Court that such orders are not interlocutory orders and, therefore, revision application was maintainable and, secondly, it was submitted that the High Court while exercising its jurisdiction under Article 226 of the Constitution of India and under Section 482 of the Cr.P.C. should not entertain such Petition. In support of the said submission, reliance was placed on the following 12 judgments viz (i) AIR 1999 SC 1028, (ii) 2012(2) ACR 1643 (SC), (iii) 2013(3)ACR 2708, (iv) 2012 BomCR (Cri) 428, (v) AIR 1978 SC 47, (vi) 1959 FAJ 542, (vii) AIR 1967 SC 286, (viii) AIR 1958 Raj 167, (ix) 2006 GLH (26) 412, (x) 2002 GLH (22) 579, (xi) 2014 (1) MLJ (Cri) 647, (xii) 2012 BomCR (Cri) 841

Secondly, it was submitted that the Petitioner was absconding accused and, therefore, this Court should not entertain the Writ Petition filed by the absconding accused. In support of this submission, reliance was placed on the following 13 judgments by the learned Senior Counsel for Respondent No.2 viz. (i) 2009(3)ACR3300(SC), (ii) AIR 1977 MAD386, (iii) AIR1995SC1991, (iv) 2007 4 AWC(Supp)3761SC, (v) JT2009(15)SC201, (vi) 2003CrilJ3612 (vii) 2005(3)Mhlj337, (viii) 1996CriLJ2418, (ix) AIR2006Delhi 81, (x) 2013 (2) ABR470, (xi) 2011 (59) BLJR3115, (xii) MANU/DE/5921/2012 (xiii) MANU/KE/0782/2005

Thirdly, it was submitted that the Petitioner had not complied with the undertaking given to this Court and to the Supreme Court and, therefore, on that ground also this Court should not entertain this Writ Petition.

Fourthly, it was contended that the order of proclamation and the lookout notice which was issued was pursuant to the steps which were taken by the Police while investigating the case and, therefore, this Court while exercising its writ jurisdiction should refrain itself from entertaining this Petition. Again, the learned Senior Counsel appearing for Respondent No.2 placed reliance in support of this submission on the following 8 judgments which included the judgment of the Privy Council viz. (i) AIR1945PC18, (ii) AIR1972SC484, (iii) AIR1980SC326, (iv) AIR1992SC604, (v) 2008 (2) ACR1346(SC), (vi) 2008(1)ACR4(SC), (vii) 2009 (2)ALD(Cri)735, (viii) 2003(2)ACR1906(SC).

Fifthly, it was contended that the Petitioner had made a false statement before this Court and the Supreme Court and, therefore, on that ground also, his Petition was not liable to be entertained.

10. The learned Senior Counsel appearing on behalf of Respondent No.2 then submitted that the Petitioner had unconditionally withdrawn the Writ Petition No.436 of 2013 in which he had prayed that no coercive steps should be taken against him till he presents himself before the lower court. It was submitted that the said prayer having been withdrawn, he was not entitled to seek the similar relief. Reliance was placed on the provisions of Order XXIII Rul1 of the Civil Procedure Code. He also relied on the judgments of the Apex Court reported in (i) AIR 1999 SC 509, (ii) AIR 2008 SC 946, (iii) AIR 1968 SC 111, (iv) (2011) II LLJ 817 (Bom) and (v) AIR 1994, SC 754. It was submitted that the said principles were applicable to the Writ Petition which was filed under Article 226 of the Constitution of India

11 On the other hand, the learned Counsel appearing on behalf of the Petitioner submitted that this Court had already rejected the contention raised by Respondent No.2 on the maintainability of the Petition in this Court. Secondly, it was submitted that since there was violation of the Petitioner’s fundamental right under Articles 14, 19 and 21, Petitioner was entitled to approach this Court under Article 226 of the Constitution of India. Thirdly, it was submitted that though the Petitioner had filed an application for recalling the order of proclamation by filing an application dated 08/05/2014, the said application was not expeditiously disposed of and, therefore, he was constrained to approach this Court. He then submitted that the ratio of the judgments on which reliance was placed by the learned Senior Counsel appearing on behalf of Respondent No.2, would not apply to the facts of the present case. He then submitted that the mandatory provisions of section 82 of Cr.P.C were not complied with and, therefore, the said order of proclamation was liable to be quashed and set aside. He submitted that the Petitioner was residing at Dubai and this fact was known to the Investigating Officer which was evident from the letter which he had addressed to the Petitioner and this letter is a part of record. In spite of that, the Investigating Officer sent the summons on Petitioner’s address at Mumbai where he was not residing. The summons was not served on the Petitioner at Dubai. It was submitted that, therefore, the Petitioner was not an absconder as contended by the learned Senior Counsel appearing on behalf of Respondent No.2. He submitted that this was a deliberate attempt on the part of Respondent No.2 and her brother to pressurize the Petitioner so that he would not come to India to fight the litigation. It was submitted that the learned Magistrate had not satisfied himself that the Petitioner had absconded or concealed himself and therefore the said warrant was not executed. It was submitted that if the learned Magistrate would have satisfied himself that the Petitioner had absconded or concealed himself then only such a proclamation could have been issued. It was then submitted that a written publication had to be published not less than thirty days from the date of passing of the order. It was submitted that the order was passed on 03/03/2014 and before 30 days could be over, the proclamation had been issued. He, therefore, submitted that there was clear breach of the provisions of section 82. It was submitted that the lookout notice which was issued was liable to be quashed and set aside. He submitted that the Petitioner would then come to India and face the prosecution and apply for appropriate orders before the appropriate court

12. We have heard the learned Counsel appearing on behalf of the Petitioner, the learned Senior Counsel appearing on behalf of Respondent No.2 and the learned APP appearing on behalf of the state

13. The learned APP submitted that the lookout notice has been renewed for a period of one year and was still in force. We have heard the learned senior Counsel for Respondent No.2 at great length. We are really surprised the great length to which the Respondent No.2’s Counsel has opposed the application filed by the Petitioner for cancellation of proclamation and lookout notice. We fail to understand the reason for resistance of Respondent No.2 since the issuance of proclamation and lookout notice is a matter between the Investigating Agency and the Petitioner. The learned Senior Counsel for Respondent No.2 has practically took us through all the judgments on which reliance was placed by him and which have been reproduced hereinabove.

14. The substance of the submissions of the learned Senior Counsel appearing for Respondent No.2 is that this Court does not have jurisdiction to entertain the Petition. Secondly, he pointed out why this Court should not entertain this Petition and grant the relief claimed by the Petitioner. He has further proceeded to tell us that this Court cannot and should not exercise its jurisdiction under Article 226 of the Constitution of India and under section 482 of the Cr.P.C. to consider whether relief claimed by the Petitioner should be granted or not. Lastly, he went to the extent of telling us after his arguments were over that this Court should pass a judicial order.

15. Before dealing with the rival contentions, we are of the view that the preliminary objection raised by Respondent No.2 regarding maintainability of this Petition is without any substance. The ratio of the judgments on which reliance is placed by the learned Senior Counsel appearing on behalf of Respondent No.2 would not apply to the facts of the present case. It has to be remembered that it is a well settled position in law that ratio of the judgment of any case would apply only if it is relevant to the facts of the case in question and if there is any distinction in the facts of the case then the said ratio and the observations made therein would not apply. We are of the view that all these judgments on which reliance is placed are absolutely irrelevant and not germane for the purpose of deciding the issue raised in this Petition. We have already by detailed order dated 04/09/2014 held that the Petition is maintainable.

16. In the present case, though the Petitioner had filed an application for recalling the order of proclamation immediately on 08/05/2014, the said application was not decided and, therefore, he was constrained to approach this Court. In our view, ultimate result of the order passed for issuance of proclamation and lookout notice is curtailment of the Petitioner’s right of free movement of coming to the Country of which he is a citizen and, therefore, such an order would directly violate his fundamental right under Article 21 of the Constitution of India and, therefore, the Petition for violation of his fundamental right is maintainable under Article 226 and 227 of the Constitution of India

17. In the present case, the Petitioner wants to come to his Country to face the prosecution. We are surprised as to why Respondent No.2 does not want the Petitioner to come back to his own Country. If the order of proclamation is not quashed, the only other way the Petitioner can be made to face the trial would be by starting proceedings of extradition. One fails to understand the real reason why Respondent No.2 is so vehemently opposing this Petition, though the State has not raised such objection. Perusal of the impugned order dated 03/03/2014 clearly reveals that the said order has been passed without compliance of the mandatory provisions of section 82. Application reveals that it was filed since the non-bailable warrant issued on 24/01/2014 had returned unexecuted due to evasion, concealment/abscondance of the accused. Panchanama reveals that the said non-bailable warrant was sought to be executed at Andheri Mumbai when, admittedly, the Petitioner is residing at Dubai. The impugned order states as under:-

“……….Therefore, issue written proclamation under section 82 of Cr.P.C requiring accused Sandip S. Kedia to appear before this Court within 30 days from today. J.C. to comply accordingly.”

 Therefore the said order itself is contrary to the provisions of section 82 which say that the proclamation has to be published in accordance with sub-section (2) of section 82 and after issuance of proclamation within 30 days thereafter the accused is supposed to appear before the Court. Section 82 of the Cr.P.C. reads as under:-

“82. Proclamation for person absconding.-(1) If any Court has reason to believe (whether after taking evidence or not) that any person against whom a warrant has been issued by it has absconded or is concealing himself so that such warrant cannot be executed, such Court may publish a written proclamation requiring him to appear at a specified place and at a specified time not less than thirty days from the date of publishing such proclamation

(2) The proclamation shall be published as follows:-

(i) (a) it shall be publicly read in some conspicuous place of the town or village in which such person ordinarily resides;

(b) it shall be affixed to some conspicuous part of the house of homestead in which such person ordinarily resides or to some conspicuous place of such town or village;

(c ) a copy thereof shall be affixed to some conspicuous part of the Court-house; (ii) the Court may also, if it thinks fit, direct a copy of the proclamation to be published in a daily newspaper circulating in the place in which such person ordinarily resides.

(3) A statement in writing by the Court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day

(4) Where a proclamation published under subsection (1) is in respect of a person accused of an offence punishable under section 302, 304, 364, 367, 382, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402, 436, 449, 459 or 460 of the Indian Penal Code (45 of 1860), and such person fails to appear at the specified place and time required by the proclamation, the Court may, after making such inquiry as it thinks fit, pronounce him a proclaimed offender and make a declaration to that effect.

(5) The provisions of sub-sections (2) and (3) shall apply to a declaration made by the Court under subsection (4) as they apply to the proclamation published under sub-section (1).”

Sub-section (2) of section 82 is, therefore, very clear about the manner in which the proclamation has to be published. The report which was tendered by the Senior Inspector of Police to the learned Magistrate dated 06/05/2014 in terms states that the proclamation was published on 02/05/2014 and has been affixed at various places near the residence of

the Petitioner in Andheri. Copy of the proclamation which is annexed to the copy of the application filed by the Petitioner also reveals that, initially, the date “08/04/2014” has been scored off and the date “05/05/2014” has been put. It is apparent therefore that firstly the non-bailable warrant was not served on the Petitioner at Dubai where he was residing for sometime which was to the knowledge of the Investigating Officer. The order also mentions that the Petitioner has to appear within 30 days from the date of the order i.e. 03/03/2014 though the section clearly mentions that it should be within 30 days from the date of publication. It is apparent that there is clear non-application of mind on the part of the learned Magistrate and, therefore, the impugned order will have to be quashed and set aside.

18. The learned Senior Counsel appearing on behalf of Respondent No.2 has cited number of judgments to show that the absconding accused has no right to file the Petition. In our view, ratio of the said judgments would not apply to the facts of the present case. It is clear from the record that the Petitioner was not served at Dubai and various attempts were made to serve him at his residence at Andheri when the Investigating Officer clearly was aware that he was residing at Dubai and not at Andheri. Since the summons was not served upon the Petitioner, it cannot be said that the Petitioner was an absconding accused.

19. It is well settled that a decision is not an authority for proposition which did not fall for consideration of the Court. It is also well settled that the point not raised before a Court would not be an authority on the said question. The Apex Court in Zee Telefilms Ltd. and another vs. Union of India and others1 has observed in paras 254, 255 & 256 as under:-

“Precedent

254: Are we bound hands and feet by Pradeep Kumar Biswas (2002) 5 SCC 111? The answer to the question must be found in the law of precedent. A decision, it is trite, should not be read as a statute. A decision is an authority for the questions of law determined by it. Such a question is determined having regard to the fact situation obtaining therein. While applying the ratio, the court may not pick out a word or a sentence from the judgment divorced from the context in which the said question arose for consideration. A judgment, as is well known, must be read in its entirety and the observations made therein should receive consideration in the light of the questions raised before it. (See Punjab National Bank v. R.L. Vaid (2004) 7 SCC 698).

255.Although decisions are galore on this point, we may refer to a recent one in State of Gujarat v. Akhil Gujarat Pravasi V.S. Mahamandal (2004) 5 SCC 155 wherein this Court held : (SCC p. 172, para 19) “It is trite that any observation made during the course of reasoning in a judgment should not be read divorced from the context in which it was used.”

256. It is further well settled that a decision is not an authority for a proposition which did not fall for its consideration. It is also a trite law that a point not raised before a court would not be an authority on the said question. In A-One Granites v. State of U.P. (2001) 3 SCC 537 it is stated as follows : (SCC p. 543, para 11) “11. This question was considered by the Court of Appeal in Lancaster Motor Co. (London) Ltd. v. Bremith Ltd. (1941) 1 KB 675 and it was laid down that when non consideration was given to the question, the decision cannot be said to be binding and precedents sub silentio and without arguments are of no moment” [See also State of U.P. v. Synthetics and Chemicals Ltd. (1991) 4 SCC 139, Arnit Das v. State of Bihar (2000) 5 SCC 488 (SCC para 20), Bhavnagar University v. Palitana Sugar Mills (P) Ltd. (2003) 2 SCC 111, Cement Corpn. of India Ltd. v. Purya (2004) 8 SCC 270, Bharat Forge Co. Ltd. v. Uttam Manohar Nakate (2005) 2 SCC 489 and Kalyan Chandra Sarkar v. Rajesh Ranjan (2005) 2 SCC 42, See para 42.]”

20 The learned Senior Counsel appearing on behalf of Respondent No.2 has relied on various judgments in support of his submissions. In our view, it is not necessary to discuss these judgments since in our considered view, ratio of these judgments are not applicable to the facts of the present case and, therefore, they will not be of any assistance to the case which is tried to be made out by the learned Senior Counsel appearing on behalf of Respondent No.2.

21 The Supreme Court has held that very often false cases are filed under section 498A. We are not for a moment suggesting that present case filed by Respondent No.2 is false. We would like to note here the extent to which the parties have gone in litigating in various courts. More than 50 cases have been filed in various courts in India and equal number of cases have been filed in Dubai Court. This reflects the extent to which the parties have gone to take revenge against each other and it has been rightly observed by the Supreme Court in one of its orders that, practically, there is feud between the husband and wife. Though this Court had made suggestions on 2/3 occasions to the parties to sit and try to sort out the matter, on one pretext or the other, the settlement talks had failed. We had on one occasion also stayed all the proceedings pending between the parties in order to see that the matter is settled. However, after sometime, this Court was told that the settlement was not possible. This has happened for more than one occasion

22 Viewed from any angle, therefore, the impugned order of issuance of proclamation as also lookout notice have been issued without any application of mind and both will have to be therefore quashed and set aside

23. Petition is therefore allowed in terms of prayer clause (b) and (c) and the impugned order of issuance of proclamation as also the lookout notice and bailable and non-bailable warrants issued against the Petitioner are quashed and set aside

24. Petition is accordingly disposed of.

25. At this stage, the learned Senior Counsel appearing on behalf of Respondent No.2 applies for stay of this order. Request of stay is declined.

(ANUJA PRABHUDESSAI, J. ) (V.M. KANADE, J.)

 

 

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