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 APPLICATION NO.40 OF 2008 APPLICATION NO.40 OF 2008 APPLICATION NO.40 OF 2008 IN IN IN CRIMINAL CRIMINAL CRIMINAL WRIT PETITION NO.1148 OF 2007 WRIT PETITION NO.1148 OF 2007 WRIT PETITION NO.1148 OF 2007 1. Shri Kiran Gokuladas Kalantry ] Age 54 years, Occ. Business ] Residing at Madhuban Apartment] Abdul Gaffar Khan Road, Worli,] Mumbai - 400 018. ] 2. Shri Dinesh Gokuldas Kalantry ] Age : 54 years, Occ. Business ] having office at Relief Cinema] Relief Road, at Ahmedabad and ] resident of Ahmedabad ] 3. Smt.Sudha Kiran Kalantry ] Age 48 years, Occ. Business ] cum Housewife, residing at ] Madhuban Apartment, ] Abdul Gaffar Khan Road, Worli,]..Applicants Mumbai - 00018 ] (Intervenor) versus 1. Dr.Prithi Paul Singh Sethi ] Indian Inhabitant having his ]... Original office at Jerbai Wadia Road ](Petitioner in Bhoiwada, Parel Mumbai-400012 ] W.P.1148/07) 2. State of Maharashtra ] (through the Public Prosecutor] High Court (A.S.), Bombay ] 3. Senior Inspector of Police ] GBCB CID (EOW), Office of the ] Commissioner of Police ] Mahapalika Marg, Mumbai-400001]...Respondents Mr.A.P.Mundergi, Sr.Advocate with Mr.Abad H. Ponda i/by Mr.Raj Baid for the applicants. Mr.Subhash Jha for Respondent No.1. Mr.H.J.Dedia, APP, for the State/respondents. CORAM CORAM CORAM : R.M.S.KHANDEPARKAR AND : R.M.S.KHANDEPARKAR AND : R.M.S.KHANDEPARKAR AND 2 A.A.SAYED, A.A.SAYED, A.A.SAYED, JJ. JJ. JJ. DATED DATED DATED : MARCH 04, 2008. : MARCH 04, 2008. : MARCH 04, 2008. ORAL ORAL ORAL JUDGMENT [PER R.M.S.KHANDEPARKAR, J] JUDGMENT [PER R.M.S.KHANDEPARKAR, J] JUDGMENT [PER R.M.S.KHANDEPARKAR, J] 1. Heard. Rule. By consent the rule is made returnable forthwith. 2. By the present application, the applicants are seeking to get the judgment and order dated 10.07.2007 passed in Writ Petition No.1148 of 2007 recalled and to intervene in the said writ petition as the party respondents thereto. 3. The few facts relevant for the decision are that Respondent No.1 herein is the original petitioner in Writ Petition No.1148 of 2007, whereas Respondent Nos.2 and 3 are the respondents therein. The said writ petition was filed seeking directions relating to investigation concerning M.E.C.R No. 02 of 2005 which was lodged at Vakola Police Station, Mumbai and for transfer of investigation to some other investigating agency. The said MECR was registered pursuant to the magistrate’s order under Section 156(3) of the Code of Criminal 3 Procedure and it was registered against the applicants herein by the Respondent No.1 herein alleging commission of offences by the three applicants under Sections 409, 419, 420, 201, 506 (ii) r/w 34 and of the Indian Penal Code. 4. The investigating officer on submission of a negative report, based on which, the order dated 18th April 2007 was passed by the Magistrate accepting the said report and, dismissing the complaint of the Respondent No.1 herein. After hearing the matter in the said writ petition, this Court recorded in its judgment that in view of the fact that the investigating machinery itself had found that the matter required further investigation, the petition could be disposed of by consent and, in fact it was disposed of by consent of the parties to the said writ petition and, thereby order dated 18th April 2007 accepting the negative report filed by the police was set aside and the police authorities were directed to complete the investigation as expeditiously as possible. Simultaneously, it was observed that in case the investigating agency required to arrest any of the applicants herein, who were accused persons, 4 then concerned person or persons should be given 72 hours prior notice. The said judgment and order was passed on 10th July 2007. 5. It is the case of the applicants that they came to know about the said order in October 2007 and being aggrieved, preferred a Special Leave Petition before the Apex Court. Permission to file SLP came to be rejected by an order dated 3rd January 2008 by the Apex Court. Thereupon the present application came to be filed on 2nd February 2008. 6. At this stage, it is also necessary to note that there is a dispute pending between the parties on account of certain agreements and transactions since 2003 onwards. Consequent to filing of the FIR by Respondent No.1 against the applicants on 15th September 2005 at Vakola Police Station, Mumbai, the applicants had approached the Sessions Court for grant of anticipatory bail and the same was granted to the applicants by the Sessions Court by its order dated 21st November 2005. Challenge to the said order before this Court was rejected by the learned Single Judge of this Court. The matter 5 was carried to the Supreme Court without any success as the Apex Court dismissed the SLP by its order dated 13th March 2007 making it clear that the observations made by the learned Single Judge in his judgment in paragraphs 7 and 8 thereof shall not affect the trial of the criminal matter in any manner. 7. By the present application, the applicants are seeking to recall the judgment and order dated 10th July 2007 passed in the said writ petition in exercise of the powers under Section 362 of the Code of Criminal Procedure while contending that the said judgment came to be passed in revisional jurisdiction without hearing the applicants in spite of the fact that the consequences of the said judgement were prejudicial to the interest of the applicants. It is the case of the applicants that the revisional powers under Section 401 of the Code of Criminal Procedure can not be exercised unless the person against whom any order is to be passed or the order to be passed is prejudicial to anyone then such a person should have sufficient opportunity of being heard in the matter and, undoubtedly in the said writ petition, the 6 applicants were not heard even though the effect of the said order has been to initiate investigation in relation to the offences alleged to have been committed by the applicants and further that investigating agency were permitted to arrest the applicants or any one of them, however, with the advance notice of 72 hours ignoring the fact that the order of grant of anticipatory bail to the applicants was confirmed by this Court and was not interfered with by the Apex Court. 8. The learned Senior Counsel appearing for the applicants, drawing our attention to Sections 362 and 401 of the Code of Criminal Procedure and placing reliance in the decisions of the Apex Court in A.K.Subbaiah and others v/s State of A.K.Subbaiah and others v/s State of A.K.Subbaiah and others v/s State of Karnataka Karnataka Karnataka and others and others and others reported in (1987) 4 SCC (1987) 4 SCC (1987) 4 SCC 557; 557; 557; P.Sundarrajan and others v/s. R.Vidhya P.Sundarrajan and others v/s. R.Vidhya P.Sundarrajan and others v/s. R.Vidhya Sekar Sekar Sekar reported in (2004) 13 SCC 472 (2004) 13 SCC 472 (2004) 13 SCC 472 and, the decisions of learned Single Judges of this Court in Bomab Rustom Irani v/s State of Maharashtra Bomab Rustom Irani v/s State of Maharashtra Bomab Rustom Irani v/s State of Maharashtra and and and Anr. Anr. Anr. reported in 2007 ALL MR (Cri) 1930; 2007 ALL MR (Cri) 1930; 2007 ALL MR (Cri) 1930; Shriram Shriram Shriram s/o. Nagordhar Mahajan v/s. State of s/o. Nagordhar Mahajan v/s. State of s/o. Nagordhar Mahajan v/s. State of Maharashtra Maharashtra Maharashtra & Anr. & Anr. & Anr. reported in 2006 ALL MR (Cri) 2006 ALL MR (Cri) 2006 ALL MR (Cri) 1311; 1311; 1311; Wajidulla s/o. Ibadulla & ors. v/s. Wajidulla s/o. Ibadulla & ors. v/s. Wajidulla s/o. Ibadulla & ors. v/s. 7 Alamkhan Alamkhan Alamkhan s/o. Raufkhan & ors. s/o. Raufkhan & ors. s/o. Raufkhan & ors. reported in 2006 2006 2006 ALL ALL ALL MR (Cri) 3035, MR (Cri) 3035, MR (Cri) 3035, submitted that the provisions of law comprised under Section 401 of the Code of Criminal Procedure clearly require an opportunity of being heard to every person who can be affected by the order to be passed in the revision application. Drawing attention to the judgment dated 10th July 2007, passed in the said writ petition, he submitted that the effect of the order is to commence investigation for the offences alleged to have been committed by the applicants which could warrant the arrest of the applicants and, therefore, the order is apparently prejudicial to the interest of the applicants and, yet there was no opportunity to the applicants of being heard in the matter before passing the said judgment. According to the learned Senior Counsel, therefore, the impugned judgment ex facie discloses contravention of the provisions of law comprised under Section 401 of the Code of Criminal Procedure which would justify recalling of the said judgment in exercise of the powers under Section 362 of the Code of Criminal Procedure. He further submitted that it has been consistent view taken by the learned Single Judges of this 8 Court that even in cases where the order rejecting issue of process is challenged by way of revision application by complainant, such an order of the Magistrate is not to be interfered with unless the person named as the accused in such a complaint is heard in the matter. The learned advocate appearing for the applicants also sought to rely upon two additional decisions, one is of the Apex Court in Bhagirath Bhagirath Bhagirath v/s. v/s. v/s. Kana Ram and another Kana Ram and another Kana Ram and another reported in 2001 2001 2001 Cri.L.J. Cri.L.J. Cri.L.J. 122 122 122 and another is the unreported decision of the learned Single Judge of this Court in the matter of Criminal Writ Petition Criminal Writ Petition Criminal Writ Petition No.462 No.462 No.462 of 2005 of 2005 of 2005 delivered on 01/3/2006 9. The learned counsel appearing for the respondents on the other hand submitted that the provisions of law comprised under Section 362 of Cr.P.C. are not meant for review of the order but are merely in relation to clerical mistakes and similar such corrections in a judgment. He further submitted that at the stage of issuance of process, there is no right vested in the accused person to be heard in the matter. That being the case, the question of accused person insisting for right to hear at the revisional 9 stage against the order of the magistrate accepting a negative report filed by the police authorities or the order directing investigation in the nature of order under Section 156(3) of the Code of Criminal Procedure does not arise. Attention was drawn to the decision in the matter of Simrikhia v/s Dolley Mukherjee and Chhabi Simrikhia v/s Dolley Mukherjee and Chhabi Simrikhia v/s Dolley Mukherjee and Chhabi Mukherjee Mukherjee Mukherjee and another and another and another reported in (1990) 2 SCC (1990) 2 SCC (1990) 2 SCC 437 437 437 and Chandra Deo Singh v/s. Prokash Chandra and Chandra Deo Singh v/s. Prokash Chandra and Chandra Deo Singh v/s. Prokash Chandra Bose Bose Bose alias Chabi Bose and another alias Chabi Bose and another alias Chabi Bose and another reported in AIR AIR AIR 1963 1963 1963 SC 1430. SC 1430. SC 1430. 10. At the out set it is to be noted that it is a fact that Writ Petition No.1148 of 2007 was disposed of by the judgment dated 10th July 2007 directing proper investigation in relation to MECR No.02 of 2005 which was registered at Vakola Police Station, Mumbai, while setting aside negative report submitted earlier by the police to the Metropolitan Magistrate which was accepted by the said Magistrate under order dated 18th April 2007 and, simultaneously the investigating agency was directed to give 72 hours advance notice to the applicants in case any one of them or all of them were required to be arrested. Equally it is true that none of the applicants 10 10 10 was party to the said writ petition nor they were heard in the matter. However, it is undisputed fact that the said order was sought to be challenged by the applicants before the Apex Court without any success as the permission to file SLP by the applicants against the said order was rejected by the Apex Court on 3rd January 2008. It is settled law that mere rejection of SLP does not amount to merger of the order of this Court in the order of Apex Court and being so, the jurisdiction of this Court to review its order remains unaffected in case the applicant is able to make out a case for review of such order. 11. Section 401 of the Code of Criminal Procedure deals with the revisional powers of the High Court and, subsection (2) thereof provides that no order under the said section should be passed to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. It can not be disputed nor it is disputed before us that exercise of powers under Article 226 of the Constitution of India while dealing with the matters on Criminal Side, the Courts will have to have due regard to the 11 11 11 provisions of Section 401 of the Code of Criminal Procedure. In other words, it can not also be disputed that any order which can be passed in exercise of the powers either in writ jurisdiction or in revisional jurisdiction, same should not be without giving sufficient opportunity of being heard to all the persons who can be affected by an order to be passed therein. 12. Section 362 of the Code of Criminal Procedure provides that save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. Certainly a case of failure on the part of the Court to hear necessary party to the proceedings or a person, who could be affected by the order to be passed, by no stretch of imagination, can be said to be a clerical or arithmetical mistake. The sole ground in the present application to seek relief in the nature of recalling of the judgment dated 10th July 2007 in the said writ petition being alleged failure on the part of the court to hear 12 12 12 the applicants before passing the said judgment, the question of exercising the powers under Section 362 can not arise. This, however, does not mean that this Court cannot exercise its inherent power to review or recall any such order in a justifiable case. 13. As already stated above, the Judgment dated 10th July 2007 was passed in Writ Petition No.1148 of 2007 merely directing proper investigation in relation to MECR No.02 of 2005 and further setting aside negative report submitted by the police pursuant to its earlier investigation. Undoubtedly, it is also observed in the said judgment that 72 hours advance notice should be given in case the investigating officer requires the accused persons or any one of them to be taken into their custody. Apart from making wild claim that such an order is prejudicial to the interest of the applicants, neither in the application nor in the course of arguments, the applicants have been able to elaborate as to how or in what way or the manner in which such an order can be said to be a prejudicial to the interest of the applicants. It cannot be forgotten that the law is well 13 13 13 settled to the effect that prior to issuance of process, the accused person has no right to be heard in the matter nor he is entitled to lead any evidence in the matter. In other words, till and until the process is issued, there is no occasion for the accused to contend that the order issuing process would be prejudicial order to him and, therefore, the accused must be heard before issuing the process. Indeed, this preposition of law is not disputed in the present matter. Whole stress has been laid on the expression, "to the prejudice of the accused or other person unless he has had an opportunity of being heard" in Section 401 of the Code of Criminal Procedure. 14. As already seen above, the law on the point that the accused is not entitled to be heard before issuing the process is well settled. The order dated 10th July 2007 in the writ petition ex facie discloses reference to the stage much prior to the order relating to issue of process. It is also pertinent to note that in cases where the order is passed by the Magistrate under Section 156(3) of the Code of Criminal Procedure, there is no right in favour of the 14 14 14 accused person to be heard before issuing such order. From these provisions of law and the stage at which the order dated 10th July 2007 came to be passed by this Court, it cannot be said that the said order is any manner prejudicial to the applicants or any one of them in any manner. 15. It is true that apart from setting aside the negative report and directing investigation in the matter, the order dated 10th July 2007 also observes requirement of 72 hours prior notice to the applicants in case they are required to be taken in custody by the investigating agency. It was sought to be contended that by the said observation this Court has virtually nullified the effect of the order of grant of anticipatory bail which was confirmed by the learned Single Judge of this Court and was not interfered with by the Apex Court. We find no substance in this contention. The said observation nowhere relates to the subject which was dealt with in the order of the Sessions Court in anticipatory bail proceedings, confirmed by the learned Single Judge of this Court and which was not interfered with by the Apex Court in SLP 15 15 15 No.3817 of 2006. Besides, it is an undisputed fact that similar ground of challenge was raised before the Apex Court in SLP No.16533 of 2007 which was preferred by the applicants against the judgment dated 10th July 2007 without any success. And the Apex Court did not entertain the SLP even on the said ground. Though, therefore, there is no merger of the order dated 10th July 2007 in the order passed by the Apex Court rejecting the SLP, the fact remains that the observation in the order of 10th July 2007 were not found to be necessary to be interfered with by the Apex Court while rejecting the SLP. It can, therefore, safely be, said that the order of learned Single Judge in relation to anticipatory bail stood modified by the order dated 10.7.2007 of the Division Bench with the approval thereof by the Apex Court. 16. There being no prejudicial order as such passed in the judgment dated 10th July 2007 to the interest of the applicants or any one of them, and hence, the question of recalling of the said order does not arise at all. 17. The Apex Court in A.K.Subbaiah case while 16 16 16 dealing with the provisions of law comprised under Section 401(2) of the Code of Criminal Procedure has held that the said section talks of a situation where an order is being passed against any person. It was observed that :- "Apparently this sub-section contemplates a situation where a person may not be an accused person before the Court below but one who might have been discharged and therefore if the revisional court after exercising jurisdiction under Section 401 wants to pass an order to the prejudice of such a person, it is necessary that that person should be given an opportunity of hearing but it does not contemplate any contingency of hearing of any person who is neither part in the proceedings in the court below nor is expected at any stage even after the revision to be joined as party." Referring to the last part of the above quoted sentence from the judgment of the Supreme Court, it was strenuously argued that even if the applicants are to be joined subsequently on issuance of process, it would be requirement of Section 401(2) of the Code of Criminal Procedure that the applicants ought to be heard in Writ Petition No.1148 of 2007. The contention is totally devoid of substance. The Apex Court has in clear terms observed that a person who is neither party to the proceedings in the court 17 17 17 below nor is expected at any stage even after the revision to be joined as the party would be necessary to be heard in the matter. The expression "expected at any stage even after the revision" refers to the stage immediately after disposal of revision either at the original stage i.e. before the Magistrate Court or before the Sessions Court. It does not contemplate a situation where joining of the party requires further adjudication and application of mind by the judicial authority and order to that effect before the such party to be joined as the party to the proceedings. In other words, in a case where investigation is yet to be completed, the report is yet to be filed, the Magistrate is yet to apply his mind about necessity of issuing process, in such a case, it cannot be said that the expression in the judgment "expected at any stage even after the revision" would also include such stages. Undisputedly, till the stage of issuance of process, there is no requirement of joining of the applicants or any one of them as the parties or party to the proceedings. Being so, by no stretch of imagination, the said expression in the said judgment can be construed to mean that it would include even the stage of 18 18 18 issuance of process. The decision in the A.K.Subbaiah case does not help the applicants to contend that in Writ Petition No.1148 of 2007, they were required to be heard before passing the order dated 10th July 2007. Every observation in the judgment has to be understood with reference to the facts of the case. It has been clearly held by the Apex Court in State of Rajasthan v. State of Rajasthan v. State of Rajasthan v. Ganeshi Ganeshi Ganeshi Lal, Lal, Lal, reported in AIR 2008 SC 690 AIR 2008 SC 690 AIR 2008 SC 690 that :- "A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has