: 1 : USJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.959 OF 2009 Sayed Wajidali Sangamneheri R/at Jeevan Sahakar, 3rd floor, P.M. Road, Fort, Mumbai-400 001 .. Petitioner V/s. 1. The State of Maharashtra Through senior Inspector of Police MRA Marg Police Station, Mumbai 2. Mrs. Usha S. Thakur Deepak Mahal, 1st floor, Station Road, Santacruz (W), Mumbai – 400 054. 3. Nelson S. Fernandes, Semerest Apartment, 58, Pali Hill Road, Mumbai – 400 050. 4. Kishore Bhide 243/6207, Gulmohar, Pant Nagar Ghatkopar, Mumbai – 400 075. 5. Vijay Patel 12, Mala Niwas, Chowpati, Mumbai – 400 007. .. Respondents : 2 : WITH CRIMINAL APPLICATION NO.401 OF 2009 IN CRIMINAL WRIT PETITION NO.959 OF 2009 Sayed Wajidali Sangamneheri R/at Jeevan Sahakar, 3rd floor, P.M. Road, Fort, Mumbai – 400 001. .. Petitioner V/s. 1. The State of Maharashtra Through Public Prosecutor High Court Building, Fort, Mumbai – 400 032 ..Respondent 2. Mrs. Usha S. Thakur Deepak Mahal, 1st floor, Station Road, Santacruz (W), Mumbai – 400 054. ..Applicant ..... Mr. V.T. Tulpule with Charmaine Bacarro for the petitioner Smt. V.R. Bhosale, APP for the respondent no.1 Mr. C.P. Deogirikar for applicant. ..... CORAM : B.H. MARLAPALLE & R.Y.GANOO, JJ. DATED : 25th November, 2009. JUDGMENT : (Per R.Y. Ganoo, J.) 1. Rule. : 3 : 2. Rule made returnable forthwith. By consent of advocates, taken up for final hearing. 3. The Petitioner has by this petition prayed that the order dated 25th July, 2001 passed by the learned Metropolitan Magistrate, 33rd Court at Ballard Pier, Mumbai granting B Summary on the final report submitted by the Assistant Commissioner of Police, Kalbadevi Division, Mumbai in Criminal Case No.54/S/1996 be quashed and set aside. 4. By Criminal Application No.401 of 2009 Mrs. Usha S. Thakur who is also shown as respondent No.2 in above Writ Petition has prayed that she be joined as party respondent in the aforesaid Writ Petition. It may be stated that pursuant to order dated 5th October, 2009 passed by this Court, the aforesaid applicant Mrs. Usha S. Thakur has already been impleaded as respondent No.2 in the Writ Petition. Similarly, Nelson S. Fernandes, Kishore Bhide and Vijay Patel have been arraigned as respondent Nos.3, 4 and 5. 5. Keeping in view the point involved in the Writ Petition, presence of respondent Nos.3,4 and 5 was not required. Arguments on behalf of the advocates as mentioned above were heard for the disposal of this petition. : 4 : 6. The petitioner herein filed a complaint in the Court of learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai (hereinafter referred to as ‘learned Metropolitan Magistrate’) being Criminal Case No. 54/3/1996 against the respondent Nos.2 to 5 herein alleging therein that respondent Nos.2 to 5 herein committed offences punishable u/s. 465, 468 and 471 of IPC r/w. Section 114 of IPC. It is the case of the petitioner that he was the President of a Co-operative Society by name Green Acres Horticultural Development Co-op. Society (hereinafter referred to as the ‘said Society’). Certain activities in the nature of development of lands situate at Dhokhamb, Tal. Shahapur, District Thane were being under taken by the said Society. According to the petitioner, respondent Nos.2 to 5 forged in all 2 letters namely letter dated 21st October, 1992, 3rd July, 1992 addressed to the office of Registrar / Assistant Registrar of Co- operative Society at Shahapur, Dist. Thane concerning the affairs of the said Society and arranged to send them to the concerned officer. According to petitioner, respondent Nos.2 to 4 forged letter addressed to the President of said Society purported to be signed by members of the said Society. According to the petitioner, respondent Nos.2 to 5 did this in order to cause damage and injury to the Society as also damage to the petitioner. : 5 : 7. On the said complaint filed by the petitioner, the learned Metropolitan Magistrate ordered issuance of process. The said order of issuance was challenged by the respondent Nos.2 to 5 by filing Writ Petition in this Court being Writ Petition No.922 of 2008. The said Writ Petition was decided by this Court and by its order dated 21st July, 1998, this Court set aside the order of issuance of process and ordered investigation on complaint by Police u/s. 156(3) of Cr.P.C. and further ordered the learned Metropolitan Magistrate to take appropriate action in the matter depending upon the report received by him. Pursuant to this order, the Police Officers attached to MRA Marge Police Station registered FIR vide MECR No.3 of 2000 on 5th June, 2000 by recording statement of the petitioner. It is seen that investigation on the said complaint was carried out. The Assistant Police Inspector Mr. Bhor, who was then investigating the said complaint came to the conclusion that the case is required to be closed by classifying it as B summary. Accordingly, he prepared the papers after obtaining opinion from the Assistant Director and Public Prosecutor, Brihan Mumbai. Thereafter, that the Assistant Commissioner of Police Kalbadevi Division, Mumbai did place the said complaint and the record pertaining to the said complaint before the learned Metropolitan Magistrate and recommended that orders regarding B summary be passed. This happened on 7th November, 2000. The learned Metropolitan Magistrate passed order on 25th July, 2001 by granting B : 6 : Summary and the said order reads as follows. “B Summary granted” Thereafter it is noticed that the case came to be closed. 8. It has been the grievance of the petitioner that he has not received any notice from the Court of learned Metropolitan Magistrate about he having passed order on 25th July, 2001 thereby treating the complaint as closed by classifying it as B Summary. 9. The petition sets out certain facts as to how and in what circumstances the petitioner could not get proper information about the said orders. It also sets out efforts made by the petitioner to explain the delay in filing the present petition. 10. Learned advocate Mr. V.T. Tulpule appearing on behalf of the petitioner submitted that when the Police submitted their report before the learned Metropolitan Magistrate and prayed that the complaint should be classified as B Summary, it was necessary for the learned Metropolitan Magistrate to issue notice to the petitioner and secure his presence before the Court and hear the petitioner before passing any order on the complaint filed by the petitioner. Learned advocate Mr. Tulpule drew our attention to the judgement in the case of Bhagwant Singh vs. Commissioner of Police and Anr. AIR 1985, SC 1285 in support of his : 7 : contention that the petitioner should have been heard before passing any order on the complaint filed by the petitioner and report submitted by the Police Authority. Learned advocate Mr. Tulpule submitted that since the petitioner was not heard before classifying the said complaint as B Summary, the impugned order is illegal and, therefore, the same be set aside. He submitted that appropriate orders should be passed so as to provide hearing to the petitioner on the complaint and report submitted by the police. 11. Learned advocate Mr. Tulpule submitted that in the peculiar facts and circumstances of this case, even if this Court comes to the conclusion that there has been some delay in filing the aforesaid petition, the said delay is required to be condoned as it has been the case of the petitioner that the petitioner was kept in dark about the order passed by the learned Metropolitan Magistrate on the complaint filed by the petitioner. 12. The learned advocate Mr. Deogirikar appearing on behalf of the respondent Nos.2 who has been arraigned as an accused in the complaint by the petitioner submitted that the petitioner had knowledge as regards the passing of the order dated 25th July, 2001 soon after the said order was passed. He made some efforts to take us through the record to support this submission. He submitted that considering the delay in filing this petition : 8 : it will not be proper for this Court to set aside the order dated 25th July, 2001 and remand the case to the Court of learned Metropolitan Magistrate for taking action. 13. Learned advocate Mr. Deogirikar had submitted that Mr. F.A. Ronak, a member of the said Society had filed Criminal Case No.CC/137/S/1997 in the Court of learned Metropolitan Magistrate, 17th Court, Mazgaon, Mumbai alleging therein that the respondent Nos.2 to 5 in this petition have committed offences punishable u/s. 465, 468, 471 r/w. section 34 of IPC. He further pointed out that the respondent Nos.2 to 5 and other persons who were shown as accused in the said Criminal Complaint had filed Criminal Writ Petition No.223 of 1998 in this Court so as to have the said complaint quashed. He submitted that this Court had by its order dated 20th August, 2001 made Rule absolute in the said complaint and the Criminal Case No.CC/137/S/1997 was quashed. Learned advocate Mr. Deogirikar submitted that a cross reference is found in the aforesaid order dated 20th August, 2001 wherein this Court had while deciding the said Petition No.233 of 1998 referred to the order passed by the learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai on the complaint filed by the present Petitioner thereby classifying it as “B Summary”. Learned advocate Deogirikar had submitted that a perusal of the aforesaid order dated 20th August, 2001 would go to show that this : 9 : Court had not recorded any observations against the order passed on the complaint filed by the petitioner classifying the said complaint as B Summary. He, therefore, submitted that it would not be proper for this Court now to reopen the issue and set aside the order dated 25th July, 2001. 14. Mrs. Bhosale, the learned APP appearing on behalf of the State tried to support the order passed by the learned Metropolitan Magistrate. 15. We have considered the entire record. Having done so, we are of the view that the course adopted by the learned Metropolitan Magistrate at the time of passing of the order dated 25th July, 2001 was not in conformity with the well settled procedure as laid down in the case of Bhagwant Singh vs. Commissioner of Police and Anr.. It was necessary for the learned Metropolitan Magistrate to hear the petitioner before passing order on the said complaint and the report filed by the Police. Learned advocate for the State and learned advocate Mr. Deogirikar appearing on behalf of respondent No.3 could not place before this Court any material to show that the petitioner was heard before passing the order dated 25th July, 2001. 16. We have perused the impugned order. The said order does not set : 10 : out even brief reasons as to why the complaint was classified as “B Summary”. On this count also the impugned order is illegal. 17. It is true that the petitioner had moved this Court by this petition after a sufficiently long time. We have perused the text of the petition and in particular the amended portion of the petition. We have noticed that the petitioner had made every effort to know what orders were passed. It is seen that he was informed from time to time that the record pertaining to the case is missing. It is pertinent to note that efforts were made by this Court to secure the record when this petition had come up for admission. It is required to be noted that the record ultimately came to be produced by the Police officer attached to MRA Marg Police station. This will mean that after the learned Metropolitan Magistrate passed the order dated 25th July, 2009, instead of retaining the said record in the Court, the same appears to have been returned to the Police officer attending to the said complaint. It is seen that on account of return of the said record to the Police officer, the Court of the learned Metropolitan Magistrate did not have the record and proceedings of the complaint filed by the petitioner and naturally petitioner was told that the record is missing. We are satisfied that the petitioner had taken reasonable efforts to trace the record and in the facts and circumstances he cannot be termed as indolent. : 11 : 18. After having noted the point involved in the matter and after having observed that the petitioner was not heard before passing the order dated 25th July, 2009, even if, it is accepted for a moment that there has been delay in filing the present petition, it would be necessary to set aside the order dated 25th July, 2001 and restore the complaint to the file so as to see that the petitioner is heard on the report submitted by the police. 19. We are informed by the learned advocates appearing in the matter that at present the complaint ought to be sent to the Court of the learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai for further action as proposed hereinabove. 20. In so far as the order dated 20th August, 2001 passed on the complaint of Mr. F.A. Ronak, it is required to be mentioned that the said complaint came to be filed by Mr. Ronak and Writ Petition No.223 of 2008 was filed only against the State of Maharashtra and F.A. Ronak. This will mean that the present Petitioner was not a party to the said petition. Even otherwise, perusal of the order dated 20th August, 2001 would go to show that in para 3, there is a mere reference to passing of the order on the complaint filed by the petitioner and classifying it as B Summary. There is nothing to say that the said order was confirmed by this Court while disposing off the said Writ Petition No.223 of 1998. Hence, order dated : 12 : 20th August, 2001 passed in Criminal Writ Petition No.223 of 1998 would not help respondent Nos.2 to 5. 21. In view of the aforesaid discussion it is hereby ordered that :- . Order dated 25th July, 2001 passed by learned Metropolitan Magistrate, 33rd Court, Ballard Pier, Mumbai thereby classifying complaint No.54/S/1996 filed by the present Petitioner as B Summary is quashed and set aside. . The Criminal Complaint No.54/S/1996 is restored to the file of learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai. . The learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai shall place complaint No.54/S/1996 on board on 14th December, 2009 for further action on the complaint and the report filed by the Police. The petitioner shall appear before the learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai either in person or through an advocate on 14th December, 2009 and on that date or so soon thereafter, the learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai shall hear the petitioner or his advocate and attend to the said complaint in accordance with the provisions of law. It is clarified that we have not expressed any views on the merits of the complaint filed by the petitioner. : 13 : . The Registrar (Judicial) is hereby directed to send the Writ of this order forthwith. Along with the said writ, the record and proceedings which were produced before this Court by the officer of MRA Marg Police station be forwarded to the learned Addl. Chief Metropolitan Magistrate, 38th Court, Ballard Pier, Mumbai. [R.Y.GANOO, J.] [B.H. MARLAPALLE, J.]