- 1 - IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.2650 OF 2006 WRIT PETITION NO.2650 OF 2006 WRIT PETITION NO.2650 OF 2006 Smt.Ashwini Kudtarkar & Anr. ...Petitioners vs. The State of Maharashtra ...Respondent Mr.K. S. Patil for the Petitioners Ms A.T.Jhaveri A.P.P. for State CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : JULY 23,2008 : JULY 23,2008 : JULY 23,2008 P.C.: P.C.: P.C.: 1. Heard the learned counsel for the Petitioners and the learned A.P.P. for the State. 2. A complaint was filed against the Petitioners in the year 2000 alleging commission of offences under section 406, 420 read with section 34 of the Indian Penal code. A charge sheet was filed by the Investigating Officer on 20th September 2000. An application was made by the Petitioners for discharge by invoking section 245 of the Code of Criminal Procedure,1973 (hereinafter referred to as the said Code). The learned Special Metropolitan Magistrate by order dated 20th October 2005 partly allowed the application and discharged the Petitioners for offence alleged under section 406 read with section 34 of the Indian Penal Code. However, a charge under section 420 r/w section 34 of the Indian Penal Code was maintained. On the same day i.e. on 20th October 2005, an application was made by the prosecution under section 173 (8) - 2 - of the said Code. The said application was allowed and the learned Special Metropolitan Magistrate directed the Investigating Officer to submit an additional charge sheet. The petitioners approached this court by filing criminal application No.306 of 2006 for challenging the order dated 20th October 2005 on discharge application. The said application No.306 of 2006 was disposed of by this court by order dated 14th June 2006 with liberty to the petitioners to challenge the said order by filing a Revision Application. At that stage, the attention of this court was invited to the order passed by the learned Magistrate under section 173 (8) of the said Code. While referring to the said order this court observed thus : "....Mr.Shetye, learned counsel for the applicants at this stage invited my attention to the order (Exh.E) passed on the application filed by the A.P.P. (Exh.D) and submitted that the applicants may be given liberty to file another application under section 245 of Cr.P.C. in the event the report of the investigating officer in pursuance of the order (Exh.E) passed on the application (Exh.D) under section 178 (8) is adverse to accused Nos.1 and 2. It is always open for the accused to file application under section 245 of Cr.P.C. seeking discharge. In such a situation, if the applicants file another application under section 245 of Cr.P.C., same - 3 - may be considered in accordance with law. The application is disposed of." 3. It appears that a Revision Application was filed by the Petitioners for challenging the order dated 20th October 2005. The said Revision Application was dismissed by order dated 14th November 2006. While disposing of the said application, the learned Sessions Judge observed that the report under section 173 of the said Code is not proper as only a copy of F.I.R. with statement of the complainant dated 21st August 2000 was filed by the police. On the basis of the statement of the complainant, the learned Judge confirmed the order dated 20th October 2005 by dismissing the Revision Application. In paragraph 7 of the impugned order, the learned Judge observed that the police did not carry out further investigation in terms of the order of the learned Magistrate. 4. In this petition, the petitioners have challenged the order dated 20th October 2005 passed on the discharge application and order dated 14th November 2006 passed on the Revision Application. 5. A reply was filed to this petition by Shri Girish Vishnu Anavkar, Assistant Police Inspector, SB-I, C.I.D., Mumbai in - 4 - which it was contended that further investigation was carried out.In paragraph 7 of the said Affidavit, it is stated thus: "....I say that during the course of further investigation the statements of complainant’s wife by name Mrs.Vasundra Burman was recorded by API Jamdade of Vile Parle Police Station and one audio cassettes involved in the investigation was also seized under panchanama and the said evidence collected in further investigation was submitted in the Court on 28-3-2006. The documents related to the further investigation of this case remained with the Assistant Public Prosecutor, 48th M.M. Court, Andheri, Mumbai since the petitioners had filed various applications in the Sessions Court and the High Court, Mumbai." 6. In paragraph 11, the said Officer has stated that even the original charge sheet contained not only F.I.R. but other documents. It is stated that the original charge sheet contained 92 pages. 7. In terms of the order passed by this court, the learned A.P.P has filed a compilation containing original charge sheet with annexures and additional/supplementary charge sheet with enclosures thereto. - 5 - 8. The contention of the learned Counsel for the Petitioner is that neither the documents produced along with the original charge sheet nor additional charge sheet were available when the Sessions Court decided the Revision Application preferred by the Petitioner and the Sessions Court has decided the Revision Application only on the basis of F.I.R and the statement of the complainant dated 21st October 2000. He submitted that there was no opportunity for the Petitioner to deal with the documents produced alongwithwith the original charge sheet as well as documents produced with the additional charge-sheet. 9. It must be noted here that in view of the order dated 14th June 2006 passed by this court in Criminal Application No.306 of 2006, the Petitioners can always file a fresh application seeking discharge. In view of the said liberty granted by this court, this petition need not be entertained. 10. The learned A.P.P. has pointed out the reasons why the concerned Officer could not remain present in this court in terms of the order passed by this court. In view of the said explanation, no further action in that behalf is called for. 11. The learned counsel for the Petitioners states that the Petitioners be granted exemption from personal appearance till discharge application is heard. It is obvious that the - 6 - Petitioners can always apply for exemption before the learned Trial Judge and the learned Trial Judge is bound to consider the said application on its own merits. 12. Hence, Petition is disposed of by observing that it will be open for the Petitioners to file a fresh application for discharge as provided in order dated 14th June 2006 passed in Criminal Application No.306 of 2006. If the fresh application is filed, the same will be decided by the learned Trial Judge expeditiously without being influenced by the order dated 14th November 2006 passed by the Sessions Court. 13. If application for exemption is made by the petitioners, the learned Judge will consider the said application on merits keeping in mind that both the petitioners are women and the case is pending since the year 2000. 14. All contentions of the merits on merits are kept open. JUDGE JUDGE JUDGE