appln5667.11 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5667 OF 2011 IN CRIMINAL WRIT PETITION NO. 322 OF 2011 Santosh Chabildas Chaudhari and others ...Applicants Versus The State of Maharashtra and others ...Respondents ..... Mr. V.D. Hon, advocate for the applicants Mr. D.V. Tele, A.P.P. for respondent no.1 Mr. S.P. Brahme, advocate for respondent no.2 ..... CORAM: S.B. DESHMUKH AND A.M. THIPSAY, JJ. DATED: 22nd December, 2011 P. C. :- 1 We have heard Mr. Hon, learned counsel for the applicants. Notice. The learned A.P.P. takes notice for respondent no.1. Advocate Mr.S.P. Brahme takes notice for respondent no.2. 2. Mr. Hon, the learned counsel for the applicants takes us to the contentions raised in this Criminal Application. He states that the Criminal Writ Petition no. 322 of 2011 was filed before this Court and appln5667.11 -2- had been disposed of by this Court after hearing the parties. He has placed on record the Annexure `D', a copy of the order passed by this Court (Coram : A.H. Joshi & A.M. Thipse, JJ) on 24th November, 2011. By this order, this Court after hearing the learned counsel for the parties observed that considering the facts brought in the submission, a conclusion that the F.I.R. is false and needs to be quashed cannot be accepted. Investigation is imperative. With these observations, this Court dismissed the Writ Petition. Thereafter, it has been observed by this Court that, at this stage i.e. after dismissal of the Writ Petition, the learned counsel for the applicants made a statement, on instructions, that applicant no.2-Mr.Anil Chhabildas Chaudhari undertakes to appear before the Magistrate and prays for continuation of interim order till then. In view of the statement made by the learned counsel for the applicants that the applicant no.2-Mr. Anil Chhabildas Chaudhari shall appear before Magistrate on 12.12.2011, this Court continued the interim order till 12.12.2011 only. 3. Mr. Hon, the learned counsel for the applicants also focus to paragraph nos. 2 and 3 of the Criminal Application, wherein a statement is made that the Criminal Writ Petition No. 322 of 2011 was posted on 17.06.2011 and interim relief/stay granted earlier was continued. In paragraph no.3, it is stated that the Criminal Writ Petition No. 322 of 2011 was posted on 29.06.2011 and interim relief/stay was appln5667.11 -3- continued till the disposal of the said matter. The annexure `C', a copy of the order dated 29th June, 2011 passed in Criminal Writ Petition No. 322 of 2011 is placed on record. 4. According to the learned counsel Mr. Hon, the applicants were protected by interim orders passed by this Court from time to time and even on dismissal of the Criminal Writ Petition finally on 24.11.2011, the said interim relief granted earlier was continued till 12.12.2011. He further points out from the Criminal Application that the present applicants have filed S.L.P. (Cri) No.D-40345 of 2011 and the Petition will be listed for hearing before the Hon'ble Supreme Court only in second week of January, 2012 in view of the ensuing Winter Vacation from 17.12.2011 to 02.01.2012. He also points out the contentions raised in Criminal Application that some additional documents have been sought by the learned counsel for the applicants at New Delhi. The documents are substantially in vernacular/Marathi language and the translation is also required to be given by the applicants. He, therefore, prays for continuation of interim protection which was granted and in operation till 12.12.2011 be continued till reopening of the Supreme Court by exercising powers under Article 226 of the Constitution of India. 5. Mr. S.P. Brahme, learned counsel for respondent no.2, on appln5667.11 -4- instructions, submitted that in view of the order dated 24th November, 2011 (Exhibit-D) passed by this Court in Criminal Writ Petition No. 322 of 2011, applicant no.2-Mr.Anil Chabildas Chaudhari did not surrender before the learned Magistrate on 12th December, 2011 despite there being undertaking given by the learned counsel on instructions on behalf of both the applicants. He, therefore, submits that the applicants have breached the undertaking given to this Court and therefore, the applicants do not deserve any protection. Apart from this, on factual aspect, he submitted that grant of such interim protection for any of the period would amount to passing of order of modification/alteration under Section 362 of the Criminal Procedure Code, which is virtually review of the order. Such modification/alteration/review is impermissible under the Criminal Procedure Code. He therefore, strongly opposes the application. Apart from this, he points out that the order dated 24.11.2011 was passed by this Court after hearing the learned counsel and considering the fact situation that the applicants were desiring to challenge the said order by filing appropriate proceedings before the Hon'ble Supreme Court and that was the appropriate time to seek more time. The last submission of Mr. Brahme is that after the order passed in Criminal Writ Petition No. 322 of 2011 on 24.11.2011, this Court has become functus officio, and therefore, there is no question now to continue and/or grant interim relief. On all these grounds, he opposes the application. appln5667.11 -5- 6. Mr. D.V. Tele, the learned A.P.P. adopts the submission made on behalf of respondent no.2 by the learned counsel Mr. Brahme. 7. Mr. Hon, the learned counsel for the applicants submits that it was not the direction given by this Court to applicant no.2-Anil Chabildas Chaudhari to surrender or remain present before Judicial Magistrate, First Class on 12th December, 2011. In substance, according to him, it is not the case of breach of order of this Court by the applicant no.2. It was an undertaking given by him on his own. Mr.Hon further submits that Section 362 of the Code of Criminal Procedure has no application in the facts of the present case. In the facts situation, it is necessary to continue the interim protection granted to the applicants. 8. We have given due consideration to the submissions advanced by the learned counsel for the parties. Even though, there is no direction given by this Court, but it was the solemn undertaking on the instructions of the applicants given by the learned counsel to this Court. If such undertaking is not adhered to by the applicant no.2, in our opinion, the discretionary relief either under Article 226 and 227 of the Constitution of India cannot be extended. Apart from this, in our opinion from the date of dismissal of the Criminal Writ Petition, this appln5667.11 -6- Court has become functus officio and now this Court cannot exercise any jurisdiction specially when it is brought to the notice of this Court by the applicants themselves that the S.L.P. (Criminal) No. D-40345 of 2011 is filed in the Hon'ble Supreme Court. It is a practice in view of Appellate Side Rules that the petitioner has to make a statement as to whether any proceedings or Petition touching to the subject matter is pending before the Hon'ble Supreme Court or pending in this Court and considering such verified statement of the applicants, this Court further passes order. In our opinion, when the issue has been seized with the Hon'ble Supreme Court and the S.L.P. number has been brought to our notice, it is not desirable, legal and proper for this Court to grant any interim protection and/or continue any interim protection. We therefore, proposes to dismiss the Criminal Application. 9. Criminal Application is dismissed. No costs. (A.M. THIPSAY, J.) (S.B. DESHMUKH, J.) sga/