Ladda page 1 wp2462-10- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 2462 OF 2010 Satish Shankarrao Patil and others .. Petitioners. versus Wamanrao Balkrishna Bhagat & others ..Respondents. Mr. Prakash Naik, Advocate, for the Petitioners.. Mr Wamanrao Balkrishna Bhagat, Respondent No.1, is present in person. Smt P.P. Bhosale, A.P.P. for the State. CORAM : A.R.JOSHI, J. DATED : 21st March, 2011 P.C. :- 1. Rule. Rule made returnable forthwith. Heard finally, by consent of parties. 2. By the present writ petition, original accused Nos. 3 to 5 prayed for quashing the criminal proceeding pending against them filed Ladda page 2 wp2462-10- by present respondent no.1 – original complainant, by way of private complaint being Case No.66 of 1993. Also, by the present writ petition various orders passed by different courts are challenged i.e. order dated 15th April, 2003 passed by learned Additional Sessions Judge, Pune in Criminal Revision Application No.44 of 1994, directing issuance of process in private complaint No. 66 of 1993 pending before the learned Chief Judicial Magistrate, Pune (for short ‘CJM’) and also the order dated 28th June, 2010 below Exhibit 125 passed by C.J.M.Pune and order dated 27th July, 2010 passed by Additional Sessions Judge, Pune in Criminal Revision Application No.392 of 2010. 3. During the pendency of the present writ petition, proceeding of private Complaint No. 66 of 1993, pending before the learned C.J.M.,Pune, was stayed by this Court. The said complaint was filed by present respondent No.1 against the accused persons, including present petitioners, then accused Nos. 3 to 5 for taking action against them under the provisions of sections 447, 109 of the Indian Penal Code (‘I.P.C’. for short). 4. Certain history of the litigation between the parties can be narrated, as under:- Ladda page 3 wp2462-10- 5. Respondent No.1 – original complainant filed private complaint bearing Complaint No. 66 of 1993 in connection with the alleged incident occurred on 21st May, 1990. Initially, directions were given under Section 202 of the Code of Criminal Procedure (‘Code’ for short). However, after police inquiry was initiated, the complainant expressed his doubts about the police investigation and as such, ultimately, it was decided by the trial Court to deal with the complaint according to the provisions of Code of Criminal Procedure and the complaint came to be dismissed on 31st December, 1993. Said order was challenged by the complainant by filing Criminal Revision Application No.44 of 1994 before the Additional Sessions Court at Pune. Said revision was partly allowed by Additional Sessions Judge, Pune on 18th July, 1994, directing the issuance of process against accused Nos. 1, 3 to 5 and the complaint was dismissed as against accused Nos. 2 and 6. 6. Being aggrieved by the aforesaid order dated 18th July,1994 of issuance of process, accused Nos. 3 to 5 preferred Criminal Writ Petition No.638 of 1995 in this Court. Vide order dated 21st February, 2001, said writ petition was disposed of remanding the matter back to Sessions Ladda page 4 wp2462-10- Court for giving opportunity to accused Nos. 3 to 5 to be heard and then to pass fresh orders. Thereafter, on 15th April, 2003, Sessions Court, Pune passed order after remand. This order is, in fact, the basis for further litigation and is interpreted by rival parties i.e. original complainant - present respondent No.1 and original accused Nos. 3 to 5, present petitioners. Said order of Additional Sessions Judge, Pune dated 15th April, 2003 passed in Criminal Revision Application No. 44 of 1994 reads as under: “(1) Criminal Revision Petition filed by the Petitioner-original complainant against the order passed by the learned Chief Judicial Magistrate, Pune in Cri. Case No.66/1993 is hereby allowed and the said order dated 31-12-1993 stands set aside. (2) The Opponents No. 3, 4 and 5 original accused, including the opponent No.1 – original accused No.1, are hereby directed to face the trial before the learned Chief Judicial Magistrate,Pune in connection with the offence punishable under section 447 read with 109 of I.P.C. (3) The controversy as regards the requirement of prior sanction is kept alive and the said controversy shall be decided by the learned C.J.M.Pune after the apperance of the accused i.e. Opponent Nos. 1,3 to 5. (4) At the same time, the controversy as to whether the complaint is barred by limitation or not is also kept alive and the same shall be decided by the learned C.J.M.Pune. (5) The Opponents No. 1, 3 to 5 are directed to Ladda page 5 wp2462-10- appear before the learned Chief Judicial Magistrate, Pune on 9th May, 2003. (6) Since the criminal Case no.66/1993 is pending for the last 10 years, the learned Trial Court is directed to speed up the trial in the interest of justice as the parties are not supposed to languish in the Court. (7) So far the order regarding issuance of process against opponent No.1 – original accused No. 1 is concerned, same has not been disturbed and hence he shall face the trial before the learned Trial Court. (8) R & P shall be sent forthwith. (9) Pronounced in open Court. Pune: 15th April, 2003. Sd/- (Pavashe L.S.) II Addl. Sessions Judge,Pune.” ----- 7. The above order was then challenged by the State of Maharashtra by filing Writ Petition No. 909 of 2003. However, said writ petition was rejected by another Bench of this Court, asking original accused Nos. 3 to 5 to file writ petition in their individual capacity as the police officers, however, liberty was given to take assistance of the Public Prosecutor in putting forth their grievance in the writ petition. On these directions accused Nos. 3 to 5, present petitioners filed Writ Petition No. 193 of 2004. However, it was dismissed for non-compliance of the directions issued by the High Court as to supply of the copies to the Ladda page 6 wp2462-10- other side. Said order of dismissal for non-prosecution was passed on 17th September, 2004. 8. On dismissal of the above writ petition No.193 of 2004 preferred by the present petitioners, instead of taking recourse by way of filing application for restoration of writ petition, present petitioners preferred criminal miscellaneous application before the C.J.M.Pune on the strength of the directions issued by the Sessions Court dated 15th April, 2003 in Criminal Revision Application No. 44 of 1994. In fact, said application was titled as ‘Application for setting aside and quashing the order of issuance of process against the accused’ taking the grounds of want of sanction from the State Government as per Section 197 of the Code of Criminal Procedure and on the aspect of original complaint being barred by law of limitation in view of the provisions of Section 468 of the Code and as per sections 160 and 161 of the Bombay Police Act, 1951. The plea raised on behalf of the present respondents, then accused Nos. 3 to 5, in the said application before the C.J.M.Pune in pending Criminal case No.66 of 1993 was to decide the said points as preliminary points, prior to proceeding further with the matter. Vide order dated 28th June, 2010, learned C.J.M.Pune dismissed the said Ladda page 7 wp2462-10- prayer with the observation that Sessions Judge, Pune had passed order of issuance of process under section 447 read with Section 109 of I.P.C. against the accused Nos. 1 and 3 to 5 and on the premise that said order of issuance of process has not been set aside till then and without looking to the aspect of the avenue kept open to the present petitioners, then accused Nos. 3 to 5 to raise the controversy regarding requirement of prior sanction under section 197 of the Code and controversy as to plea of limitation open by way of paragraph Nos. 3 and 4 of the operative order dated 15th April, 2003. 9. Against the said order dated 28th June, 2010 passed by the C.J.M.Pune rejecting the applications of the petitioner, accused Nos. 3 to 5 for deciding such preliminary points, Criminal Revision Application No. 392 of 2010 was preferred before the Sessions Court, Pune. However, said Revision Application was dismissed on 27th July, 2010 by Additional Sessions Judge, Pune. While passing the said order of dismissal of the Revision Petition No. 392 of 2010, Additional Sessions Judge, Pune observed to the following effect. “It appears from the prayers in exhibits 110 and 125 that applicants are praying for Ladda page 8 wp2462-10- setting aside and quashing of issuance of process. The trial court has rightly rejected the applications. The Trial Court cannot go beyond the order passed in the revision, by which the order of the trial court declining the issue of process is set aside and the applicants are directed to face trial. There is no error in the order passed by the trial Court.” After the above observations, the final order of dismissal of the revision application was passed. 10. In fact, this is also the order challenged in the present writ petition along with the main prayer for quashing of the entire criminal complaint pending since 1993. 11. During argument, respondent No.1, who is original complainant, submitted that inspite of the repeated orders passed by the Sessions Court and this High Court dismissing the prayers of original accused Nos. 3 to 5, they are again re-agitating the issue before C.J.M.Pune praying for dismissal of the entire complaint. It is submitted that such prayers may not be granted in the writ jurisdiction and that also when the criminal complaint is pending since the year 1993 and till date only on the issuance of process matter has been dragged till the year 2001. It is also submitted that the allegations against the present petitioners original accused Nos. 3 to 5, being police officers, are of serious nature Ladda page 9 wp2462-10- as to abetment for the offence of trespass committed by original accused No.1. It is also submitted that present respondent No.2 had already initiated civil as well as criminal proceedings arising out of the same transaction concerning the trespass over the suit property of the complainant. 12. It is further argued by the original complainant respondent No.2 that the two avenues kept open to accused Nos. 3 to 5 - present petitioners, vide order dated 15th April, 2003 which is quoted above, can be very well decided during the trial of the Complaint Case No.66 of 1993. As against this argument, learned advocate for the petitioners submitted that either the entire prosecution may be quashed or at the most the matter may be remanded back to the C.J.M.Pune for deciding the controversies as detailed in paragraph Nos. 3 and 4 of the order dated 15th April, 2003 and such preliminary issue is required to be determined prior to proceeding further with the complaint case No.66 of 1993. 13. In support of these submissions ratio propounded by the following authority is taken support of on behalf of the petitioners. 1962 DGLS (Soft) 316 = 1963 (0) AIR SC 849 Ladda page 10 wp2462-10- It is submitted that the prosecution or suit shall not be entertained or shall be dismissed, if initiated more than six months after the date of the act complained of, in view of provisions of section 161 of the Bombay Police Act, 1951. 14. Considering the rival submissions and the prayers in the present writ petition and considering that two avenues kept open by the order dated 15th April, 2003 passed by Additional Sessions Judge, Pune in Criminal Revision Application No. 44 of 1994 and as the said order is not challenged by either the present petitioners or Respondent No.1, it must be said that opportunity must be available to the present petitioners to put the preliminary challenge as to the maintainability of the criminal complaint on both the counts mentioned in paragraph Nos. 3 and 4 of the order dated 15th April, 2003. In other words, the controversy as to requirement of prior sanction under section 197 of the Code of Criminal Procedure for initiating criminal action against the police officers and also the controversy as to whether the criminal complaint is barred by law of limitation in view of provisions of Section 468 of the Code and Section 161 of the Bombay Police Act goes to the root of the matter so far as locus of the trial Court in dealing with the Ladda page 11 wp2462-10- criminal complaint. 15. In that view of the matter, it is necessary that said two controversies are required to be put to rest by the C.J.M.Pune who is seized of the Complaint Case No.66 of 1993 by hearing the parties on said controversies at the threshold and then to proceed with the criminal complaint, according to law, if the concerned court can entertain the said complaint. 16. In that view of the matter, as discussed above, the present criminal writ petition is disposed of by the following order. ORDER: (i) The matter is remanded back to the Chief Judicial Magistrate, Pune before whom criminal complaint No. 66 of 1993 is still pending. (ii) Concerned Court shall deal with the two preliminary aspects as detailed in para Nos. 3 and 4 of the order dated 15th April, 2003 quoted above. (iii) Present petitioners – accused Nos. 3 to 5 shall file appropriate application for getting resolved the said two controversies. Ladda page 12 wp2462-10- (iv) The trial Court shall deal with such controversies according to law after giving opportunity to both parties of being heard and then accordingly to proceed further with the criminal trial in consonance with the order passed on said controversies. (v) Parties to appear before the trial Court on 30th March, 2011. (vi) The trial Court shall decide the matter in accordance with law, without being influenced by any observations, remark or finding made in the above order. (A.R. JOSHI, J.)