1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1304 OF 2009 Dushyant Madhukant Mehta. ... Petitioner. V/s. The State of Maharashtra & Ors. ... Respondents. Mr. K.G. Menon with Mr. J.L. Phoujdar for the Petitioner. Mr. I.P. Bagaria for Respondent No.3. Mr. A.S. Shitole, APP for the State. CORAM : S.C. DHARMADHIKARI,J. DATED : 02nd FEBRUARY 2010. P.C. :- Rule. Contesting Respondents waive service. By consent, Rule made returnable forthwith. Heard Counsel. 2. The order under challenge is dated 23rd April 2009 which is passed by the learned Additional Sessions Judge of the Sessions Court, at Bombay in an Application being Misc. Application No.33 of 2008. 2. M.P.I.D. Special Case No.34 of 2004 is on the file of the Court of Special Judge at Greater Bombay. That is a case registered pursuant to the provisions of the Maharashtra Protection of Interests of Depositors (In Financial Establishments) Act, 1999 (for short MPID Act). 3. The Petitioners before me are the Applicants, who moved the subject Misc. Application. The relief claimed therein was that an order dated 26th December 2006 passed by the 2 Special Judge in Misc. Application No.112 of 2006 in the said Special Case be set aside and the Investigating Officer be directed to release an immovable property, more particularly described in the application. 4. The Petitioners/Applicants stated that they are bona-fide purchasers of Flat Nos.103 and 104, that they have purchased these two and other two flats from the vendors by the documents evidencing a sale. Thus, the flats have been duly transferred to them after they paid the consideration in respect there of. The Share Certificates have been transferred by the subject Society. These flats were now attached although the proceedings have been stayed. One Shyam Ahuja preferred Misc. Application No.112 of 2006 in this Special Case seeking attachment of various properties including these four flats. This application was made on 26th December 2006 on the very day, the Special Judge passed an order attaching these flats. Aggrieved by this attachment, the Applicants moved the subject Misc. Application for setting aside the said orders and releasing the flats. 5. In support of their application, it was urged that on 5th September 2005, a Full Bench of this Court in a decision reported in 2005 (4) Mah.L.J. 5 (V.C. Buljal V/s. State of Maharashtra) held that M.P.I.D. Act is ultra-vires inasmuch as the State legislature was not competent to enact the same. Appeals to Supreme Court from the Full Bench decision are preferred by the State Government and the same are pending. 3 Assuming that there is a limited order granted by the Supreme Court, yet, the said order does not mean that the Act is revived or restored to statute book and all that the Supreme Court order protects and permits are proceedings prior to the Supreme Court entertaining the Appeal. There also, the Court has clarified what proceedings can go on. In the present case, Shyam Ahuja, who is a party Respondent to this Writ Petition, made an application under which the attachment has been levied. That Application is preferred by Shyam Ahuja on 26th December 2006. If no proceedings could have been initiated or continued after the act has been struck down and when even the Supreme Court order does not permit initiation of such an application, then, all the same, no interim order of attachment could have been levied. Consequently, the order attaching the properties must be set aside. 6. Mr. Shyam Ahuja opposed this application and pointed out as to how the interest of the depositors require attachment of these flats. Further, it is urged by him that offences not only under the MPID Act but also under the I.P.C. have been alleged. The Court concerned has directed investigation under Section 156(3) and has passed an order of seizure of the property by taking recourse to Section 102 of the Cr.P.C. In these circumstances, when there is a fraudulent alienation, then, the properties could have been very well attached. Further, the Applicants are not bona-fide purchasers and therefore, their application should be dismissed. 4 7. Others also appeared and opposed the application. 8. The learned Judge framed the necessary points and as far as Point Nos.1 and 2 are concerned, he has specifically referred to the charge-sheet in MPID Special Case No.34 of 2004. The learned Judge has also referred to a private complaint being Misc. No. 658 of 2002 and the order dated 30th November 2002 therein seizing certain properties. However, in paragraphs 13 to 15 of the impugned order, the learned Judge has referred to the MPID Act, the Full Bench decision and the order of the Supreme Court. From a reading of the entire order, it is apparent to me that the learned Judge has only gone by the MPID Act and he seems to be proceeding on the basis that the Supreme Court order does not prohibit applying for attachment by Respondent No.3 – Shyam Ahuja. 9. True it is that a reference is made by him to Section 102 of Cr.P.C. and Judgments of the Hon’ble Supreme Court on that provision, yet, what is apparent to me is that the learned Judge was considering the Petitioners Application for vacating the attachment of the flats. That attachment was made by an order dated 26th December 2006 on Misc. Application No.112 of 2006. That is an application made by Shyam Ahuja and that application invokes the powers under the MPID Act. That application itself could not have been made as the Act was struck down by a Full Bench of this Court. When that application itself was not maintainable, no interim order of 5 attachment could have been made thereon. Even if the Supreme Court order is perused, the same clearly does not permit making of any such application and passing of an order by the learned Judge. The learned Judge ought to have been aware of the fact that once Special Case under MPID Act cannot proceed, then, he could not have taken any cognizance of the application of Shyam Ahuja. That he has done and passed an interim order of attachment is something which is ex-facie contrary to law. That was impermissible and would amount to brushing aside and ignoring the binding decision of this Court. As long the Full Bench decision is in the field, such an application could not have been made by Shyam Ahuja and even if made, no order could have been made thereon, by the learned Judge. 10. On this short ground alone, this Writ Petition succeeds. Rule is made absolute. Order dated 23rd April 2009, passed by the Special Judge is set aside. Misc. Application No.33 of 2008 is allowed. The immovable property viz. four flats, more particularly described therein shall stand released from attachment but on the condition that for a period of six weeks from today, the Petitioners shall not alienate, encumber, part with possession or transfer these flats, in any manner. (S.C. DHARMADHIKARI,J.)