1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3348 OF 2007 IN CRIMINAL WRIT PETITION NO.646 OF 2005 Damodhar Jagannath Lokhande And Another. ... Applicants. Versus The State of Maharashtra and others. ... Respondent. -------- Miss Surekha Mahajan, Advocate for applicants. Shri. B.J. Sonwane, Additional Public Prosecutor, for respondent Nos.1 to 6. Shri. D.N. Salvi, Counsel, with Shri. Alok Sharma, Assistant Solicitor General for Union of India, for respondent No.7. -------- CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. DATE: 16th SEPTEMBER 2009 PER COURT : 1) The learned counsel Smt. Mahajan submits that the applicants were not made parties to the proceedings of Criminal Writ Petition No.646 of 2005. By judgment and order dated 23rd February 2 2007 a Division Bench of High Court, Bench at Aurangabad allowed the petition in terms of prayer clauses (B) and (C). Prayer clauses (B) and (C) read as under: “(B) Record and proceedings of this case be called for from the State CID Jalgaon in the case of C.R. No. 242/2005. (C) By appropriate writ order or direction the further investigation in C.R. No.242/2005 may kindly be handed over to the Central Bureau of Investigation.” Rule was accordingly made absolute by this Court. 2) The learned counsel further pointed out that Criminal Writ Petition No.1278 of 2007 was filed by Smt. Rajni Vishram Patil, widow of deceased Vishram Patil at the Principal Seat of the Bombay High Court. The applicants were not made party to the said proceedings. According to the counsel, after the applicants came to know of pendency of said proceedings from media reports, an application came to be filed by the applicants bearing Criminal Application No.285 of 2007 in 3 Criminal Writ Petition No.1278 of 2007. By an order dated 19th September,2007 a Division Bench (Coram: R.M.S. Khandeparkar and V.K. Tahilramani, JJ.) allowed the application filed by the applicants to the extent of their impleadment as intervenors in the proceedings of Criminal Writ Petition No.1278 of 2007. 3) Criminal Writ Petition No.1278 of 2007 was finally disposed of by the Division Bench of Hon’ble the Chief Justice, Shri. Swatanter Kumar and Dr. D.Y. Chandrachud, J. on 18th July 2009. Copy of the judgment and order delivered by the Division Bench in Criminal Writ Petition No.1278 of 2007 was produced before us. 4) In substance, the contention of the learned counsel appearing for the review applicants is that the directions issued by the Division Bench of this Court in Criminal Writ Petition No.646 of 2005 are required to be reviewed as the applicants were not made parties 4 to the proceedings and consequently were not heard by the Division Bench. The order passed by the Division Bench in the said writ petition has adversely affected the review applicants and has caused prejudice to them more particularly in view of the fact that the First Information Report lodged initially against the applicants was quashed and set aside by this Court on 3-2-2006. Special Leave Petitions filed against the said order to the Apex Court both by the State CID as well as the widow of the deceased, namely, Smt. Rajni Vishram Patil, were dismissed by the Apex Court on 18-4-2007. 5) The learned counsel for the applicants submits that initially the State CID filed charge sheet on 22-12-2007. Thereafter, the CBI filed a charge sheet on 10-6-2008 and a supplementary charge sheet was filed by the CBI on 6-10-2008 wherein the applicants were shown as accused. The counsel, therefore, submits that in the earlier proceedings the charge sheet filed by the 5 State CID, the FIR to the extent of the applicants was quashed and set aside. The applicants could not have been made accused by the C.B.I., therefore, this Court ought not to have transfered the investigation to the C.B.I. without hearing the applicants. The learned counsel further informs that the sessions trial to the extent of the applicants is stayed in the proceedings of Criminal Application No.3679 of 2008 pending before the learned Single Judge of this Court. The said matter is posted for final hearing on 30th September 2009. It was clarified by the learned Single Judge, according to the counsel, that the trial Court could proceed against other accused persons. 6) The learned counsel appearing for the CBI, Mr. Salvi raises a preliminary objection to the maintainability of the review application itself as in the submission of the counsel for the applicants, in view of the provisions of Sections 6 and 362 of the Code of Criminal 6 Procedure and Article 214 of the Constitution of India, the review application is not maintainable. 7) The learned counsel appearing for the respondent No.7 - CBI has placed reliance on the reported judgment in State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran, AIR 2009 SC 46 in support of the contention that the review of the order passed by this Court is not maintainable. The learned counsel also placed reliance on the provisions of Section 362 of the Code of Criminal Procedure which reads thus: “362. Court not to alter judgment.-- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.” 8) In the submission of the counsel, no Court when it has signed its judgment or final order shall review the same except to correct the 7 clerical or arithmetical error. In the submission of the counsel, the definition of “Court” as envisaged in Section 362 of the Code of Criminal Procedure covers the proceedings of writ petition filed under Articles 226 and 227 of the Constitution of India. 9) The learned counsel appearing for respondent No.7 further submitted that it would be premature for the applicants to seek hearing at this stage. The accused would be entitled to defend themselves at an appropriate stage in the proceedings of the trial. Reliance was placed by the counsel on the reported judgment in the case of Hardeep Singh v. State of Punjab, AIR 2009 SC 483. Learned counsel submits that Criminal Writ Petition No.1278 of 2007 filed in the Bombay High Court is finally disposed of. The applicants have specifically raised a challenge to their being made accused in the supplementary charge sheet filed by the CBI on 6-10-2008 and have already resorted to proceedings before the 8 learned Single Judge of the High Court (Criminal Application No.3679 of 2008). The counsel submits that even on merits this review application deserves to be dismissed. 10) We have considered the submissions advanced by the learned counsel appearing for the parties. The learned counsel for the applicants in support of her contentions relied upon the following judgments. (i) Rajesh v. Ramdeo, (2001) 10 SCC 759. (ii) State of Bihar v. Lal Krishna Advani, (2003)8 SCC 361. (iii) Zahira Habibullah Shiekh v. State of Gujarat, (2004) 5 SCC 353. (iv) Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122. (v) Satyajit Banerjee v. State of W.B., (2005) 1 SCC 115. (vi) Shashikant v. Central Bureau of Investigation, (2007) 1 SCC 630. (vii) State of Andhra Pradesh v. A.S. Peter, (2008) 2 SCC 383. (viii) Ramchandran v. R. Udhayakumar, (2008) 5 SCC 413. (ix) Baijnath Jha v. Sita Ram, AIR 2008 SC 2778. 9 We have perused the judgments cited by the learned counsel appearing for the parties. 11) We would consider the review application on merits. We have perused the judgment and order delivered by the Bombay High court in Criminal Writ Petition No.1278 of 2007. Consequent to the judgment and order passed by the Division Bench at Aurangabad in Criminal Writ Petition No.646 of 2007 the investigation was transfered to the Central Bureau of Investigation. It is admitted fact that the CBI had filed charge sheet on 10-6-2008 and a supplementary charge sheet was filed on 6-10-2008. The applicants have resorted to independent proceedings for quashing of the prosecution lodged by the CBI in the proceedings of Criminal Application No.3679 of 2008 which is pending final hearing before the learned Single Judge of this High Court. 10 12) We are convinced with the submissions advanced by the counsel for respondent No.7, Shri. Salvi. It would be appropriate to consider the review application in the settled parameters and principles laid down in law for entertaining review application. 13) As regards the objections raised to the maintainability of review application by the learned counsel Shri. Salvi appearing for the CBI we are not fully convinced. We do not notice any satisfactory ground to entertain the review application on its own merits. 14) The Criminal Application No.3348 of 2007 is accordingly dismissed. Authenticated copy be given to the counsel for the parties as per rules. (SHRIHARI P. DAVARE, J.) (NARESH H PATIL, J.) rsl/ crapln.3348.07