1 (crwp1216/10) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.1216 OF 2010 Mrs. Tanuja Kamalakar Save ...Petitioner Vs. Shri Keshav alias Dr. Kamlakar Bhaskar Save & Ors. ...Respondents ----- Mr. Jagdish Choudhary with Mr.I.J. Nankani i/b M/s. Nankani and Associates for Petitioner Mr. Sunil Kadam for Intervenor. Mrs. R.V. Newton, APP for the State. Mr. Prakash Naik for Respondent Nos.1 and 2. ----- CORAM: V.M. KANADE J. DATED: 16TH JULY, 2010 P.C. 1. This petition is filed by the Petitioner under Article 226 & 227 of the Constitution of India and under section 482 of the Criminal Procedure Code. By this petition, the Petitioner is challenging the order dated 24th February, 2010 passed by the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai and also an inaction on the part of the Learned Magistrate in restoring the possession of the Petitioner in respect of the said premises. The Petitioner is also seeking direction that the possession in respect of the suit premises should be restored. 2 (crwp1216/10) 2. Brief facts of the case are that the Respondent No.1 is a practicing doctor in Malad and the Respondent No.2 is the son of the Respondent No.1. According to the Petitioner, the Respondent No.1 made a representation to her that he is a divorcee and obtained consent from the Petitioner by fraud and they got married in March, 1994. 3. It is the Petitioner's case that she came across an advertisement in the matrimonial column in the daily newspaper 'Loksatta' dated 9th January, 1994 in which the Respondent No.1 represented that he is a divorcee and he was seeking a matrimonial partner. Thereafter, there was correspondence between the Petitioner and the Respondent No.1 and, thereafter, they got married according to the Hindu Vedic Rites on 14th November, 1994. 4. The Petitioner No.1 started residing with the Respondent No.1 along with her daughter in the suit premises. However, the first wife of the Respondent No.1 along with Respondent No.2 entered the premises sometime in November, 1997 and assaulted the Petitioner and her daughter. At that time, according to the Petitioner, she realized that the Respondent No.1 had committed fraud. The Respondent No.1 left the matrimonial house and started residing with his first wife. According to the Petitioner, she continued to reside in the suit premises along with her daughter. The Respondent No.1 filed suit in the City Civil 3 (crwp1216/10) court at Mumbai vide S.C. Suit No. 7431 of 1999 seeking declaration that the Petitioner has no right to obstruct the Respondent No.1 and his family members and also seeking ownership of the suit premises and for an order of injunction restraining the Petitioner from obstructing the Respondent No.1 and his family members. The application for interim relief was rejected and the suit was dismissed by judgment and order dated 26th September, 2006. The City Civil Court in its judgment and order has categorically recorded a finding that the Petitioner No.1 and his daughter were in possession of the suit premises and Plaintiff is not in possession prior to the filing of the suit. An appeal against the said judgment and order has been filed by the Respondent No.1 in this Court. However, no interim order has been passed by this Court, nor the first appeal has been admitted so far. 5. The Petitioner, thereafter, filed an application for maintenance in the Family Court at Bandra vide M.J. Petition No.C-1 of 2000 seeking maintenance at the rate of Rs. 15,000/- p.m. and for other reliefs. The Family Court, Bandra was pleased to pass an order in favour of the Petitioner granting maintenance to her at the rate of Rs. 10,000/- p.m. The operative order reads as under: “The respondent shall pay Rs.10,000/- per month to the petitioner as maintenance from the date of petition i.e. 27th December, 1999. 4 (crwp1216/10) The respondent shall not disturb the petitioner's occupation and use of the flat in her possession, until she resides there. The respondent shall also pay cost of this petition. Decree be drawn accordingly.” 6. Against this order, the Respondent No.1 filed Family Court appeal No. 30 of 2008 and also filed a Civil Application No. 59 of 2008, which came up before the Division Bench of this Court. In the said appeal, by consent of the Petitioner and the Respondent No.1, the order of the Family Court was confirmed and the Appellant-Respondent No.1 agreed to deposit the arrears of maintenance in four equal monthly installments. He had agreed to continue to pay the current monthly amount of maintenance. Thereafter, the Respondent No.1 filed SLP in the Apex Court. The said SLP was, however, dismissed. Liberty, however, was granted by the Apex Court to the Respondent No.1 to approach this Court by filing a review petition. The Respondent No.1, thereafter, preferred a review petition, which was also rejected by order dated 18.10.2008. Again he preferred another SLP before the Apex Court, which was also dismissed by order dated 11.1.2010. It is the case of the Petitioner that when she had gone to Alibagh for a period of two days, the Respondent No.1 put his own lock on the said premises. She, therefore, filed a police complaint and produced the relevant orders of the various Courts, which 5 (crwp1216/10) were passed in her favour. An FIR was, accordingly, registered against the Respondent No.1 on 10.12.2009. 7. Quite surprisingly, in spite of specific orders passed by this court from time to time, the police submitted a report to the Learned Magistrate, 24th Court, Borivali, Mumbai and the Learned Magistrate by order dated 8.1.2010 directed the parties to put forthwith their respective claim under section 145(1) of the Cr.P.C. He also directed that the parties should not interfere in the affairs of each other. 8. A reply was filed by the Petitioner herein. Preliminary objections were also raised by the Petitioner regarding initiation of proceeding under section 145 of the Cr.P.C. In spite of various orders passed by Various Courts, the learned Magistrate did not decide the issue. 9. In the meantime, the Respondent No.1 purportedly by gift deed dated 19th January, 2010 transferred the suit flat in favour of his son. The Respondent No.2, thereafter, in spite of order of injunction passed by the Family Court and in spite of finding recorded by the Civil Court, sold the premises by sale deed dated 4th February, 2010 to a third party by name Dilip Baing, who is the Respondent No.1’s wife’s sister’s husband. 10. Though repeated requests were made by the Petitioner to the Learned Magistrate, asking him to take up the case, it 6 (crwp1216/10) is submitted that the Learned Magistrate was pleased to adjourn the matter from time to time. Under these circumstances, the present petition has been filed, seeking reliefs as claimed by the Petitioner in this petition. 11. The learned Counsel for the Petitioner has vehemently urged that this a gross abuse of the process of the Courts. He submitted that in view of the finding given by the Civil Court in favour of the Petitioner that she is in possession of the suit Premises, the learned Learned Magistrate should not have initiated the proceedings under section 145 (1) of the Cr.P.C. He submitted that the Family Court also had passed an order of injunction restraining the Respondent No.1 from disturbing the possession of the Petitioner. In spite of the fact that the said order was confirmed by the Division Bench of this Court and this order was also confirmed by dismissal of the SLP filed by the Respondent No.2, the proceedings under 145 (1) have been initiated. It is submitted that this Court while exercising its jurisdiction under the provisions of section 482 of Cr.P.C. can pass appropriate orders for the purpose of correcting the mistake which is occurred on account of the proceedings which are initiated by the Learned Magistrate under section 145(1) of the Cr.P.C. It is submitted that the Respondent Nos.1 and 2 who are assisted by the police and during pendency of the proceedings under section 145 (1) of the Cr.P.C. the Petitioner was dispossessed from the suit premises and third party rights are created, it is submitted that such third 7 (crwp1216/10) party rights which are created by transfer of property are non-est, void and cannot be acted upon. The learned Counsel for the Petitioner has relied on number of judgments in support of the said submissions. 12. Shri Prashant Naik, the learned Counsel appearing on behalf of the Respondent No.1, on the other hand submitted that the Family Court had specifically stated that the Respondent No.1 shall not disturb the possession of the Petitioner till she is residing in the said premises. He submitted that the Petitioner has alternate premises and the allegations made by the Petitioner in the petition were patently false and incorrect. He submitted that the third party rights have already been created and, therefore, this Court while exercising its power vested under the provisions of section 482 of Cr.P.C. should not pass an order restoring the possession of the Petitioner. He then invited my attention to the prayers made in the petition and submitted that there were several contradictions. He submitted that prayer (a) is for quashing the proceedings under 145 (1) of Cr.P.C. and at the same time prayer (b) was for restoring the possession of the Petitioner. He invited my attention to the orders passed by the Family Court. He further submitted that the Respondent No.1 had challenged only the order of grant of maintenance before this Court and, therefore, it should not be said that the Family Court's order was confirmed by this Court. In the Supreme Court also, the maintenance order alone was challenged by the Respondent 8 (crwp1216/10) No.1. It is submitted that third party rights now have been created and, therefore, prayer clause (b) should not be granted in favour of the Petitioner. He submitted that the third party was also to be added as a Party Respondent. The third party also filed an affidavit in which he has annexed copy of the agreement for sale by the Respondent No.2 in his favour. The Third party appeared in the Court. 13. This Court by order dated 8th June, 2010 had directed the Respondent No.3 to take inventory of the premises and submit a report. The report is, accordingly, submitted by the Respondent No.3. 14. After having heard the learned Counsel appearing on behalf of the Petitioner, the learned Counsel for Respondent No.1, the learned Counsel for the Intervener and the learned APP appearing on behalf of the State, I am of the view that, in this case, there is blatant abuse of the process of law by Respondent Nos.1 and 2 which has resulted in miscarriage of justice and breach of the orders passed by the Family Court which order has been confirmed by this Court as well as the Apex Court on more than one occasion and, therefore, while exercising writ jurisdiction of this Court under Article 227 of the Constitution of India and inherent powers of this Court under section 482 of the Criminal Procedure Code, a direction will have to be given to the Senior Inspector of Police to put the Petitioner in possession of the premises with liberty to Respondent Nos. 1 and 2 and intervener 9 (crwp1216/10) to obtain appropriate orders from the civil court if they wish to establish their right of possession and ownership of the said flat. The said finding is given for the following reasons. 15. In the present case, Respondent No.1 initially filed a suit in the City Civil Court for a declaration that Defendants have no right to cause obstruction to the Plaintiff and his family members for using and enjoying the suit premises and the said suit was finally dismissed and a finding has been recorded by the City Civil Court that the Petitioner herein is in possession of the suit premises. The relevant issue and the finding given on the said issue is as under:- Issue Finding Whether the Plaintiff proves his possession over the suit property as described in para 1 of the Plaint? In the negative. Following observations have been made by the learned Judge of the City Civil Court on this finding in para 14 of its judgment:- “14.......................All other documentary evidence of the Plaintiff shows that Defendant No.1 is in possession of the suit residential premises. When the Plaintiff and his family members were not in possession of the suit residential premises, there is no question of obstruction. In the cross examination of 10 (crwp1216/10) PW 1, he admitted that he never filed any complaint against defendant No.1 in any police station for her michevious behaviour. Thus the plaintiff is not in possession of the suit premises. He also failed to prove obstruction by the defendants. On the contrary the defendants are in possession of the suit residential premises. I, therefore, answer issue Nos. 1, 2 and 4 in the negative.” The competent Civil Court, therefore has given a finding that the Petitioner herein is in possession of the suit premises whereas Respondent No.1 and his family members are not in possession of the suit premises. Against this order, an appeal has been preferred by respondent No.1 in this court. The said appeal is not yet admitted and, admittedly, no interim relief has been passed by this Court till today. 16. Thereafter, the Petitioner filed proceedings in the Family Court, Bandra. The learned Principal Judge of the Family Court was pleased to pass the following order:- “O R D E R The respondent shall pay Rs 10,000/- per month to the petitioner as maintenance from the date of petition i.e. 27th December, 1999. The respondent shall not disturb the petitioner’s occupation and use of the flat in her possession, until she resides there. The respondent shall also pay cost of this petition. 11 (crwp1216/10) Decree be drawn accordingly.” From the aforesaid order, it is abundantly clear that the competent matrimonial court had protected the possession of the Petitioner and has passed an interim order restraining Respondent No.1 from disturbing her occupation and use of the flat in her possession. The matrimonial court also therefore had recorded a finding that the Petitioner was in possession and in use of the said premise. This order was challenged by Respondent No.1 by filing an appeal in this Court. The said appeal was disposed of by consent of parties and Respondent No.1 agreed to deposit arrears of maintenance in four equal monthly installments and it he also agreed that he would continue to pay the current monthly amount of maintenance as per the order of the Trial Court. This order also was challenged by Respondent No.1 by filing SLP in the Apex Court and the Apex Court has passed the following order “UPON hearing counsel the Court made the following ORDER Since the impugned order was passed on consent of parties, we are not inclined to entertain this special leave petition under Article 136 of the Constitution of India. The special leave petition is accordingly dismissed. However, dismissal of the special leave petition will not debar the petitioner 12 (crwp1216/10) from approaching the High Court for recall of its order on the ground that the consent was not given.” Since liberty was granted to Respondent No.1 to approach this Court again, he filed a review petition. The review petition also was rejected by Division Bench of this Court by order dated 18/10/2008. This order again was challenged by Respondent No.1 by filing SLP. The said SLP was also dismissed. 17. In spite of the order of injunction passed by the Family Court which was confirmed by this Court and the Apex Court, on 9/12/2009 when the Petitioner had gone to her aunt who was staying at Alibaug, Respondent No.2 changed the lock of the suit flat. She, therefore, made an inquiry with the watchman of the Society who informed that Respondent No. 2 had broken the lock which was put by her and had installed his own lock. Under these circumstances, the Petitioner lodged a complaint on 10/12/2009 with the Malad Police Station which was registered vide FIR No.487 of 2009 for the offence punishable under section 341 of the Indian Penal Code. Though the police were shown the relevant documents and courts’ orders, no action was taken against Respondent Nos. 1 and 2. On the contrary, a notice was issued to her by the Superintendent of Police Vasant V. Patil, under section 149 of the Criminal Procedure Code telling her that she should not cause any kind of injury to Respondent No.2 – Naineet Kamlakar Save or to commit breach of peace 13 (crwp1216/10) or else suitable legal action would be taken against her. At this stage, it must be pointed out that instead of taking action against Respondent Nos. 1 and 2 who were injuncted by order of the Family Court from disturbing possession of the Petitioner, though they had committed breach of the said order and there was clearcut finding recorded by the City Civil Court as well as the Family Court, Bandra regarding her possession, the Superintendent of Police, Malad Police Station issued a show cause notice to the Petitioner in whose favour the Court had passed an order of injunction. This clearly demonstrates that the Police were hand in glove with Respondent Nos. 1 and 2. The matter, however, did not stop here. Thereafter, Senior Inspector of Police, Malad Police Station made an application to the Additional Chief Metropolitan Magistrate, 24th Court, Borivali, Mumbai under section 145 of the Code of Criminal Procedure and in the said application it was observed that there was a dispute regarding ownership and possession over the said flat and, therefore, treating the said premises as disputed premises proceedings may be initiated under section 145 of the Criminal Procedure Code. The said application is dated 11/12/2009. On the same day, the learned Additional Chief Metropolitan Magistrate issued notice to the respective parties. Notice dated 11/12/2009 issued by the Court was served on the Petitioner herein. Petitioner filed her preliminary objection in the said Court in which the orders passed by the City Civil Court and the Family Court were mentioned and it was stated therein that the proceedings 14 (crwp1216/10) initiated by the police were in utter disregard to the orders of the civil courts and that the report of the police was malafide. It was further stated that the police failed to take action against Respondent No.2. After this application raising preliminary objection was filed on 11/1/2010, on 08/01/2010, Shri D.H. Sharma, Additional Chief Metropolitan Magistrate, 24th Court, Borivli, Mumbai passed the following order:- O R D E R One of the parties viz. Tanuja Save appeared alongwith her counsel without putting forth any claim as required u/s. 145(1) Cr.P.C. The other party by name Navnit Save appeared before the Court saying that he wants time to engage a lawyer. Unless the parties put forth their claims, the Court shall not be in a position to adjudicate upon it. So the parties are directed u/s 145(1) Cr.P.C to put forth their respective claims. Till then, they shall not interfere in the affairs of each other and shall not cause any disturbance of the peace.” Thereafter, the matter was simply adjourned by the learned Additional Chief Metropolitan Magistrate. In my view, the learned Magistrate clearly erred in simply adjourning the application without deciding the preliminary issue raised by the Petitioner about the maintainability of the proceedings under section 145 and without passing any interim order 15 (crwp1216/10) under section 145(4) and (6). The learned Magistrate ought to have restored the possession of the Petitioner by passing suitable order in view of the finding given by the City Civil Court and the Principal Judge of the Family Court. The learned Magistrate, however, simply adjourned the matter from February to 05/05/2010. Under these circumstances, Petitioner had no other option but to come to this Court. 18. In the meantime, taking advantage of the pending proceedings before the learned Magistrate, Respondent No.1 by a gift deed dated 19/1/2009 and, thereafter, Respondent No.2 by an agreement of sale sold the said flat in favour of one Dilip Tukaram Baing dated 04/02/2010. It is an admitted position that the said Dilip Baing is Respondent No.1’s first wife’s sister’s husband who also has a flat in the same building. The said flat which was in possession of the Petitioner was sold for a total consideration of Rs 15 lacs out of which admittedly an amount of Rs 5 lakh was paid at the time of execution of the agreement by cheque. The carpet area of the said flat is 484 sq.ft. Respondent Nos. 1 and 2, therefore, not only committed breach of the order passed by the Family Court but further tried to make an attempt to show that third party rights have been created and thus flouted the orders passed by the Family Court. I was informed by the learned Counsel appearing on behalf of the Petitioner that the Respondent No.1 had also not paid the maintenance which was awarded by the Family Court till today. The aforesaid facts, therefore clearly revealed that 16 (crwp1216/10) the Senior Inspector of Malad Police Station instead of taking any action against Respondent No.2 who had broken open the lock of the Petitioner on 9/12/2009 had, in fact, facilitated the Respondent Nos. 1 and 2 and the intervener Shri Dilip Tukaram Baing in usurping the property which was in possession of the Petitioner. 19. I must point out that the learned Additional Chief Metropolitan Magistrate D.H. Sharma also did not apply his mind when the application was filed by the Senior Inspector of Police Malad Police Station for initiating proceedings under section 145 of the Cr.P.C. particularly after application raising preliminary objection was filed by the Petitioner for maintainability of the said application. The learned Magistrate ought to have passed an order under section 145(1), stating the grounds on which he was satisfied that from the report of the Police Officer dispute was likely to cause a breach of peace or atleast at this stage decided preliminary objection raised by the Petitioner herein or atleast in view of various judicial orders passed in favour of the Petitioner granted interim order protecting the possession of the Petitioner or passed an order under section 145(5). The learned Magistrate ought to have passed an order restoring the possession of the Petitioner. 20. It is a well settled position in law that once a finding is given by the competent Civil Court, the Magistrate thereafter does not have any jurisdiction to continue the proceedings 17 (crwp1216/10) under section 145 of the Criminal Procedure Code. In the present case, admittedly, a finding was given by the City Civil Court holding that the Petitioner was in possession of the premises. The Family Court, Bandra also had recorded the similar finding and had injuncted the Respondents from disturbing her possession and the learned Magistrate, therefore, ought to have restored the possession of the Petitioner. Under these circumstances, therefore, In my view, the learned Additional Chief Metropolitan Magistrate, Boriviali committed an error of law which is apparent on the face of record. Even otherwise, in proceedings which are initiated under section 145 of the Cr.P.C., the learned Magistrate is expected to ascertain the physical possession of the parties and he is not expected to go into the question of ownership of the premises. The submission made by the learned Counsel appearing on behalf of Respondent Nos. 1 and 2 that the Family Court had granted injunction only till the Petitioner was residing in the premises is without any substance and the said submission is only to be stated before rejecting it. Respondent Nos. 1 and 2 have blatantly violated the order passed by the Family Court which order was confirmed on two occasions by this Court and the Supreme Court and the respondents