:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 CRIMINAL MISC. APPLICATION NO. 1481 OF 2003 IN IN IN CRIMINAL APPLICATION NO. 2086 OF 1999 CRIMINAL APPLICATION NO. 2086 OF 1999 CRIMINAL APPLICATION NO. 2086 OF 1999 IN IN IN CRIMINAL WRIT PETITION NO. 245 OF 1993 CRIMINAL WRIT PETITION NO. 245 OF 1993 CRIMINAL WRIT PETITION NO. 245 OF 1993 Mr. Anil Prabhakar Naik ] Indian Citizen, residing at ] 203, Wilmary, Bamanwada, ] Vile Parle East, Mumbai 400 099 ]..Petitioner versus 1. Mr. Chandrakant B. Garware ] Indian Citizen, residing at ] IL Palazzo, B. G. Kher Marg, ] Malbar Hill, Mumbai 400 026 ] 2. Mr. Vasudev Sabaji Shringare] Indian Citizen, residing at ] 1/78, Tajukaya Mansion, ] 3rd floor, Lalbaug,Mumbai 400012] 3. The Senior Inspector of ] Police, General Branch, CID ] Mumbai ] 4. The State of Maharashtra ]..Respondents Mr. Rafique Dada, Senior Counsel with Smt. Mohana Nair for the Petitioner. Mr. H. H. Ponda with Ranjit Shetty, for the Respondent No.1 Mr. A. R. Patil APP for the Respondents - State. CORAM : D. G. DESHPANDE, J. CORAM : D. G. DESHPANDE, J. CORAM : D. G. DESHPANDE, J. DATE : 4TH MAY, 2006 DATE : 4TH MAY, 2006 DATE : 4TH MAY, 2006 ORAL JUDGMENT (IN CHAMBER) : ORAL JUDGMENT (IN CHAMBER) : ORAL JUDGMENT (IN CHAMBER) : :2: 1. Heard learned counsel for the parties. 2. Original Writ Petition No. 245 of 1993 was filed by Chandrakant Bhalchandra Garware. The title of the Petition shows that it was filed under Article 226 and 227 of the Constitution of the India and in the matter of Section 482 of the Code of Criminal Procedure. Prayer in this petition was to quash and set aside the Order of the Magistrate dated 24.2.1993 in Case Nos. 1133 to 1135/P/1991 and restraining the Respondent Nos. 1 and 2 or their agents from receiving any dividend which may accrue etc. In this Petition No. 245 of 1993 Anil Prabhakar Naik filed Criminal Application No. 2086 of 1999 for directions. The title of this Criminal Application shows that it was also filed as in the matter of Article 227 of the Constitution of India, and in the matter of Criminal Revision Application under Section 439, 482 of the Code of Criminal Procedure. 3. In both these mattes, i.e. Writ Petition No. 245 of 1993 and Criminal Application No. 2086 of 1999, I have passed an order on 14.2.2000. By that order, the Writ Petition was allowed in terms :3: of prayer clauses (a), (b) and (c) and Criminal Application was dismissed with costs of Rs.10,000/-. Now, the present Application No. 1481 of 2003 is filed by Anil Naik. 4. Mr. Dada, Senior Counsel for the Petitioner viz. Anil Naik in Criminal Application No. 1481 of 2003 has filed a compilation of the documents, copy of which is served upon Mr. Ponda, counsel for Chandrakant Garware. There is an order dated 28.4.1995 of Additional Chief Metropolitan Magistrate, 37th Court, Esplanade, Bombay, in C.C. No. 151/N/95. It was an order passed on the application of Chandrakant Garware to the effect that he does not want to prosecute any of his complaints against Anil Naik and that he has entered into an Agreement and the matter is amicably settled. Accordingly, as per this Order all the share certificates were physically handed over to Anil Naik. 5. Mr. Dada, therefore, states that when share certificates have been handed over to Anil Naik, then my order disentitling Anil Naik to receive dividend warrants, has created complicated situation :4: because even though the share certificates are with Anil Naik, he cannot get the dividends and the Police Officer has been permitted to collect all the dividends. Mr. Dada also stated that this Order of the Magistrate was passed on 28.4.1995 but none of the parties to the main petition or the application were aware of this order, and, this order was not produced before the court, and, therefore, in the circumstances, the court can interfere. 6. Mr. Ponda relying upon two Judgments of the Supreme Court reported in (2001)4 Supreme Court (2001)4 Supreme Court (2001)4 Supreme Court Cases 752 State of Kerala vs. M. M. Manikantan Cases 752 State of Kerala vs. M. M. Manikantan Cases 752 State of Kerala vs. M. M. Manikantan Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Nair, and (2001)1 Supreme Court Cases 169 Hari Singh Mann vs. Harbhajan Singh Bajwa and others, Mann vs. Harbhajan Singh Bajwa and others, Mann vs. Harbhajan Singh Bajwa and others, contended that review of the order is strictly prohibited and it is not permissible, now, for this court to pass any order. Mr. Ponda also stated that nowhere it is stated by Anil Naik that this order of the Magistrate was not available when this Petition and Application was finally decided by me. 7. Mr. Dada relied upon two judgments of the Supreme Court reported in AIR 1988 Supreme Court AIR 1988 Supreme Court AIR 1988 Supreme Court 1531 A. R. Antulay vs. R.S. Nayak and others 1531 A. R. Antulay vs. R.S. Nayak and others 1531 A. R. Antulay vs. R.S. Nayak and others, :5: and AIR 1994 Supreme Court 1673 Ramchandra Ganpat AIR 1994 Supreme Court 1673 Ramchandra Ganpat AIR 1994 Supreme Court 1673 Ramchandra Ganpat Shinde and another vs. State of Maharashtra and Shinde and another vs. State of Maharashtra and Shinde and another vs. State of Maharashtra and others others others. Mr. Dada, also contended that main Writ Petition No. 245 of 1993 was a Writ Petition under Articles 226 and 227 of the Constitution, and, therefore, the judgments relied upon by Mr. Ponda, did not apply. 8. In Hari Singh Mann’s case relied upon by Mr. Ponda, the respondent No.1 who was a practising Advocate had filed a Petition under Section 482 of Criminal Procedure Code for calling for the record and directing to register a case on the basis of the complaint dated 14.12.1998. The said petition came to be disposed of by the High Court on 7.1.1999. The court found that no case for direct registration of the case was made out and the preliminary enquiry was required. The petition was therefore disposed of with the direction to the SSP to look into the allegations of the petitioner and if he comes to the conclusion that some cognizable offence has been made out then to register the offence. Thereafter, the respondent No.1 again filed Misc. petition before the same court, which came to be dismissed on 30.4.1999 by the same Single Judge without notice to :6: the other side, and it was recorded that he filed Criminal complaint on 9.3.1999 in the Court of Mrs. Neelam Arora JMTC, Kharar, where cognizance was taken and therefore he does not want to prosecute the allegations with the SSP, who may be directed not to take any action. This was an order passed by the Single Judge. The Supreme Court in the background of the matter held that no review of an order was contemplated under Code of Criminal Procedure, and after the High Court has disposed of the main petition on 7.1.1999 there was no lis pending in the High Court wherein the Respondent could have filed any miscellaneous petition. The Supreme Court also observed that there is no provision in the Criminal Procedure Code authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction and such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. 9. In the another judgment relied upon by Mr. Ponda (2001)4 Supreme Court Cases 752, as stated above, in that matter the respondent was prosecuted for certain offences of the IPC and under the :7: provisions of Prevention of Corruption Act. He filed revision before the Kerala High Court for quashing the criminal proceedings on the ground that there was no sanction to prosecute as required under Section 122 of the Kerala Panchayats Act. That Criminal M.C. No. 1137 of 2000 was dismissed by the Single Judge of the Kerala High Court by judgment dated 31.5.2000 on the ground that there was proper sanction to prosecute and a prima facie case was made out. Subsequently, a miscellaneous petition came to be filed in the said case for clarification of the above order. The petition was finally allowed on 13.7.2000 and the same learned Judge held that there was no proper sanction from the competent authority and therefore no cognizance could have been taken. In this background of the matter, the Supreme Court relying upon the judgment of Hari Singh Mann, referred to above, observed that High Court has no powers to review its judgment either in exercise of its appellate or revisional or original criminal jurisdiction. 10. Mr. Ponda therefore contended that in view of these two judgments, the present application filed by Anil Naik, cannot be entertained. :8: 11. As against this, Mr. Dada, firstly contended that the main writ petition No.245 / 1993 was a petition under Articles 226 and 227 of the Constitution and therefore the petition was decided by me under those Articles of the Constitution and as such both the judgments relied upon by Mr. Ponda, were not applicable. Mr. Dada, also drew my attention to paragraph 83 of the said Judgment reported in AIR 1988 Supreme Court 1531, as stated above, wherein the Supreme Court observed : ".......We proclaim and pronounce that no ".......We proclaim and pronounce that no ".......We proclaim and pronounce that no man is above the law, but at the same time man is above the law, but at the same time man is above the law, but at the same time reiterate and declare that no man can be reiterate and declare that no man can be reiterate and declare that no man can be denied his rights under the Constitution and denied his rights under the Constitution and denied his rights under the Constitution and the laws. He has a right to be dealt with the laws. He has a right to be dealt with the laws. He has a right to be dealt with in accordance with the law and not in in accordance with the law and not in in accordance with the law and not in derogation of it. This Court, in its derogation of it. This Court, in its derogation of it. This Court, in its anxiety to facilitate the parties to have a anxiety to facilitate the parties to have a anxiety to facilitate the parties to have a speedy trial gave directions on 16th speedy trial gave directions on 16th speedy trial gave directions on 16th February, 1984 as mentioned hereinbefore February, 1984 as mentioned hereinbefore February, 1984 as mentioned hereinbefore without conscious awareness of the exclusive without conscious awareness of the exclusive without conscious awareness of the exclusive jurisdiction of the Special Courts under the jurisdiction of the Special Courts under the jurisdiction of the Special Courts under the 1952 Act and that being the only procedure 1952 Act and that being the only procedure 1952 Act and that being the only procedure established by law, there can be no established by law, there can be no established by law, there can be no deviation from the terms of Article 21 of deviation from the terms of Article 21 of deviation from the terms of Article 21 of the Constitution of India. That is the only the Constitution of India. That is the only the Constitution of India. That is the only procedure under which it should have been procedure under which it should have been procedure under which it should have been guided. By reason of giving the directions guided. By reason of giving the directions guided. By reason of giving the directions on 16th February, 1984 this Court had also on 16th February, 1984 this Court had also on 16th February, 1984 this Court had also unintentionally caused the appellant the unintentionally caused the appellant the unintentionally caused the appellant the denial of rights under Article 14 of the denial of rights under Article 14 of the denial of rights under Article 14 of the Constitution by denying him the equal Constitution by denying him the equal Constitution by denying him the equal protection of law by being singled out for a protection of law by being singled out for a protection of law by being singled out for a special procedure not provided for by law. special procedure not provided for by law. special procedure not provided for by law. When these factors are brought to the notice When these factors are brought to the notice When these factors are brought to the notice of this Court, even if there are any of this Court, even if there are any of this Court, even if there are any :9: technicalities this Court should not feel technicalities this Court should not feel technicalities this Court should not feel shackled and decline to rectify that shackled and decline to rectify that shackled and decline to rectify that injustice or otherwise the injustice noticed injustice or otherwise the injustice noticed injustice or otherwise the injustice noticed will remain forever a blot on justice. It will remain forever a blot on justice. It will remain forever a blot on justice. It has been said long time ago that "Actus has been said long time ago that "Actus has been said long time ago that "Actus Curiae Neminem Gravabit" an act of Court Curiae Neminem Gravabit" an act of Court Curiae Neminem Gravabit" an act of Court shall prejudice no man. This maxim is shall prejudice no man. This maxim is shall prejudice no man. This maxim is founded upon justice and good sense and founded upon justice and good sense and founded upon justice and good sense and affords safe and certain guide for the affords safe and certain guide for the affords safe and certain guide for the administration of the law." administration of the law." administration of the law." My attention was also drawn to paragraphs 100, 105 and 106 of the said judgment, particularly, the following portion: "100. ....One of the first and highest "100. ....One of the first and highest "100. ....One of the first and highest duties of all courts is to take care that duties of all courts is to take care that duties of all courts is to take care that the act of the court does no injury to any the act of the court does no injury to any the act of the court does no injury to any of the suitors, and when the expression act of the suitors, and when the expression act of the suitors, and when the expression act of the court is used, it does not mean of the court is used, it does not mean of the court is used, it does not mean merely the act of the primary court, of any merely the act of the primary court, of any merely the act of the primary court, of any intermediate court of appeal, but the act of intermediate court of appeal, but the act of intermediate court of appeal, but the act of the court as a whole, from the lowest court the court as a whole, from the lowest court the court as a whole, from the lowest court which entertains jurisdiction over the which entertains jurisdiction over the which entertains jurisdiction over the matter up to the highest court which finally matter up to the highest court which finally matter up to the highest court which finally disposes of the case. It is the duty of the disposes of the case. It is the duty of the disposes of the case. It is the duty of the aggregage of those Tribunals, if I may use aggregage of those Tribunals, if I may use aggregage of those Tribunals, if I may use the expression, to take care that no act of the expression, to take care that no act of the expression, to take care that no act of the court in the course of the whole of the the court in the course of the whole of the the court in the course of the whole of the proceedings does an injury to the suitors in proceedings does an injury to the suitors in proceedings does an injury to the suitors in courts." courts." courts." "105. ...Quite apart from Section 151, any "105. ...Quite apart from Section 151, any "105. ...Quite apart from Section 151, any court might have rightly considered itself court might have rightly considered itself court might have rightly considered itself to possess an inherent power to rectify the to possess an inherent power to rectify the to possess an inherent power to rectify the mistake which had been inadvertently made." mistake which had been inadvertently made." mistake which had been inadvertently made." "..Where substantial injustice would "..Where substantial injustice would "..Where substantial injustice would otherwise, result, the court has, in their otherwise, result, the court has, in their otherwise, result, the court has, in their Lordships’ opinion, an inherent power to set Lordships’ opinion, an inherent power to set Lordships’ opinion, an inherent power to set aside its own judgments of condemnation so aside its own judgments of condemnation so aside its own judgments of condemnation so as to let in bonafide claims by parties..." as to let in bonafide claims by parties..." as to let in bonafide claims by parties..." :10: 106. To err is human, is the oft quoted 106. To err is human, is the oft quoted 106. To err is human, is the oft quoted saying. Courts including the apex one are saying. Courts including the apex one are saying. Courts including the apex one are no exception. To own up the mistake when no exception. To own up the mistake when no exception. To own up the mistake when judicial satisfaction is reached does not judicial satisfaction is reached does not judicial satisfaction is reached does not militate against its status or authority. militate against its status or authority. militate against its status or authority. Perhaps it would enhance both." Perhaps it would enhance both." Perhaps it would enhance both." 12. Another judgment relied upon Mr. Dada, reported in AIR 1994 Supreme Court 1673, as stated above, and my attention was drawn to paragraphs 13 and 14, which reads thus: "13. Respect for law is one of the cardinal "13. Respect for law is one of the cardinal "13. Respect for law is one of the cardinal principles for an effective operation of the principles for an effective operation of the principles for an effective operation of the Constitution, law and the popular Constitution, law and the popular Constitution, law and the popular Government. The faith of the people is the Government. The faith of the people is the Government. The faith of the people is the source and succour to invigorate justice source and succour to invigorate justice source and succour to invigorate justice intertwined with the efficacy of law. The intertwined with the efficacy of law. The intertwined with the efficacy of law. The principle of justice is ingrained in our principle of justice is ingrained in our principle of justice is ingrained in our conscience and though ours is a nascent conscience and though ours is a nascent conscience and though ours is a nascent democracy which has now taken deep roots in democracy which has now taken deep roots in democracy which has now taken deep roots in our ethos of adjudication - be it judicial, our ethos of adjudication - be it judicial, our ethos of adjudication - be it judicial, quasi-judicial or administrative as quasi-judicial or administrative as quasi-judicial or administrative as hallmark, the faith of the people in the hallmark, the faith of the people in the hallmark, the faith of the people in the efficacy of judicial process would be efficacy of judicial process would be efficacy of judicial process would be disillusioned, if the parties are permitted disillusioned, if the parties are permitted disillusioned, if the parties are permitted to abuse its process and allowed to go scot to abuse its process and allowed to go scot to abuse its process and allowed to go scot free. It is but the primary duty and free. It is but the primary duty and free. It is but the primary duty and highest responsibility of the Court to highest responsibility of the Court to highest responsibility of the Court to correct such orders at the earliest and correct such orders at the earliest and correct such orders at the earliest and restore the confidence of the litigant restore the confidence of the litigant restore the confidence of the litigant public, in the purity of fountain of public, in the purity of fountain of public, in the purity of fountain of justice; remove stains on the efficacy of justice; remove stains on the efficacy of justice; remove stains on the efficacy of judicial adjudication and respect for rule judicial adjudication and respect for rule judicial adjudication and respect for rule of law, lest people would lose faith in the of law, lest people would lose faith in the of law, lest people would lose faith in the Courts and take recourse to Courts and take recourse to Courts and take recourse to extra-constitutional remedies which is a extra-constitutional remedies which is a extra-constitutional remedies which is a death-knell to the rule of law. death-knell to the rule of law. death-knell to the rule of law. 14. In M. V. Venkataramana Bhat v. 14. In M. V. Venkataramana Bhat v. 14. In M. V. Venkataramana Bhat v. :11: Returning Officer, C.A. No. 3607 of 1993 Returning Officer, C.A. No. 3607 of 1993 Returning Officer, C.A. No. 3607 of 1993 this Court by judgment dated July 30, 1993, this Court by judgment dated July 30, 1993, this Court by judgment dated July 30, 1993, set aside the election. The facts were that set aside the election. The facts were that set aside the election. The facts were that one Jaiprakash Rai filed a writ petition in one Jaiprakash Rai filed a writ petition in one Jaiprakash Rai filed a writ petition in the High Court of Karnataka one day prior to the High Court of Karnataka one day prior to the High Court of Karnataka one day prior to the date of election of the Pradhan of the the date of election of the Pradhan of the the date of election of the Pradhan of the Samithi, obtained ad interim order and Samithi, obtained ad interim order and Samithi, obtained ad interim order and prevented two members to participate and prevented two members to participate and prevented two members to participate and exercise their franchise in the election of exercise their franchise in the election of exercise their franchise in the election of the Pradhan. His candidate was elected with the Pradhan. His candidate was elected with the Pradhan. His candidate was elected with a margin of one vote. The writ petition a margin of one vote. The writ petition a margin of one vote. The writ petition was, ultimately, dismissed. The writ was, ultimately, dismissed. The writ was, ultimately, dismissed. The writ petition under appeal was filed to declare petition under appeal was filed to declare petition under appeal was filed to declare the election as illegal, void etc. The High the election as illegal, void etc. The High the election as