1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3219/2009 Mr.Anil Gidwani Application Vs. Justice Bilal Nazki & Ors. Respondents Applicant in person Ms.Kantharia APP for State CORAM : SMT.RANJANA DESAI, & SMT.MRIDULA BHATKAR,JJ. DATE : 26th FEBRUARY, 2010. P.C. . Leave to amend and delete prayer 4 . Amendment be carried out forthwith. 2] Applicant Mr.Anil Gidwani is appearing in person . In this application the applicant has made the following prayers. 1] That the Hon’ble Court be pleased to direct the respondent no.1 to provide proof of his statements in the order dated March,30, 2009 in C.A.3397/2003 as laid out in Item 13,14 and 15 of this application, and to provide a copy of the said proofs, if any, to the petitioner. 2 2] That the Hon’ble Court be pleased to direct the respondent no.1 to obtain and furnish proof of the statement as laid out in Items 16 in the order dated March 30, 2009 as laid out in Items 16 of this application and to provide a copy of the said proofs, if any, to the petitioner . 3] That the Hon’ble Court be pleased to initiate perjury proceedings against the respondent no.1 for his perjurious statements if he fails to provide both proofs as prayed in 1 and 2 above, and to forward the results of the perjury proceedings to the Chief Justice of India and the Government of India for consequential action with the assent of the President of India. 3] Grievance of the applicant is about the order dated 30th March, 2009 passed by the bench presided over by the first respondent. The order reads as follows. 1] “ The Respondent, who appears in person is not present. He, either remains absent or seeks an adjournment assuring the Court that he shall appear on the next date and again absents himself. We have heard the Public Prosecutor and it is stated that the respondent continues to file fresh petitions and 3 applications against Mrs.Shanta Mhatre, Advocate. 2] Since, the Respondent is not co-operating in disposal of the case, we are constrained to direct that no fresh Application, Petition, Suit or any other proceeding shall be instituted by the Respondent in any Court in the State of Maharashtra except with prior permission of this Court. 3] The matter to be listed on 27th April, 2009. “ 3] We have heard the applicant. He submitted that the observation made in the above order that “the applicant either remains absent or seeks adjournments assuring the Court that he shall appear on the next date and again absents himself ” is factually incorrect . He submitted that further observation that he is not cooperating in disposing of the case is also not correct. He drew our attention to the Rozanama and contended that on several occasions he had remained present. He submitted that he is keen on disposal of the main application. However, the application is not being disposed of. He submitted that the observations made by the first respondent are totally unwarranted. He further submitted that this case falls within the parameters of 4 sections 191 and 219 of the Indian Penal Code and therefore, this Court should grant the prayers made in this application. 4] Learned A.P.P.Ms.Kantharia has strongly opposed the application. 5] In our opinion the applicant could have either appealed against the order dated 30th March,2009 or could have sought review thereof. An application of this type is not maintainable. We have carefully perused the Rozanama . Rozanama indicates that on some occasions the applicant has remained absent and on some occasions he has indeed not remained present. Apart from the fact that it is not possible for us to issue directions prayed for in the application to initiate the proceedings against a Judge of this Court ,the applicant’s interpretation of relevant sections is wrong. Section 191 pertains to giving false evidence. It states that whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to 5 give false evidence. Section 219 of the Indian Penal Code states that whoever, being a public servant, corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report, order , verdict, or decision which he knows to be contrary to law, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. 6] Relying on these provisions the applicant contended that the first respondent has made false statement in his order and he has maliciously pronounced the order dated 30th March, 2009. 7] In our opinion section 191 of the Indian Penal Code on the face of it is inapplicable It pertains to giving false evidence. Term ‘evidence’ is described in the Indian Evidence Act,1872 as under. “Evidence”- “Evidence” means and includes- (1) all statements which the Court permits or requires to be made before it by witness, in relation to matters of fact under enquiry ; [ all documents including electronic records produced for the inspection of the Court ] such 6 documents are called documentary evidence. A Judge when he passes order certainly does not give evidence . His order does not fall under section 191 of the Indian Penal Code . 8] Section 219 of the Indian Penal Code as has already been noted has two ingredients. Order must be pronounced corruptly or maliciously knowing that it is contrary to law . The applicant’s case is that the order is maliciously passed. We have no manner of doubt that the order is not maliciously pronounced. Section 219 of the Indian Penal Code is therefore not attracted. 9] As we have already noted on some occasions the applicant has remained present and on some occasions he has remained absent. It is possible that learned Judge has observed that the applicant was absenting himself on the basis of some of the dates on which he remained absent. But the further observation made by learned Judge that the respondent continues to file fresh petitions and applications against Mrs.Shanta Mhatre, Advocate is made after hearing the Public Prosecutor. Learned Judge has observed that he 7 has “heard the Public Prosecutor and it is stated that the respondent continues to file fresh petitions against Mrs.Shanta Mhatre, Advocate.” This is merely the reproduction of the statement made by the public prosecutor. The observation that the respondent is not cooperating is not malicious. We refrain from commenting on the tenor of the application only because we do not want to precipitate the matter. 10] We had asked the applicant whether he would seek review of order dated 30th March, 2009. He was not inclined to make an application for review. In our opinion the application of this nature is not maintainable. Besides it is without merit and hence is dismissed. (Smt.Ranjana Desai,J.) (Smt.Mridula Bhatkar,J.)