1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Criminal Application No.6 of 2009 In Criminal Writ Petition NO.1000 of 2008 Sudhakar Bhojaya Shetty .. .. Applicant (Orig. Petitioner) v/s. J.K. Sharma Sr.Engineer (Land) & Estate Office Western Railway & anr. .. .. Respondents (Orig.Res.No.3) Mr.S.G. Deshmukh i/by Mr.S.A. Tawate for Applicant. Mr.Suresh Kumar for Res.No.1. Mr.V.B. Konde-Deshmukh, APP for Res.No.2-APP. ----- CORAM : B.H. MARLAPALLE & SMT.ROSHAN DALVI, JJ. Dated : 27th July, 2009 P.C. : 1.Heard Mr.Deshmukh, the learned Counsel with Mr.Tawate for the Applicant, Mr.Suresh Kumar for Respondent Nos.1 and the learned APP for Respondent No.2-State. 2.The Applicant had approached this Court in Criminal Writ Petition No.1000 of 2008 and prayed for directions against Respondent No.1-State of Maharashtra therein, to register FIR and FIR against Respondent Nos.2, 3, 4 and their men (Sharad Ugale, J.K. Sharma and Permanand Mishra) under Sections 452, 147, 148, 149, 323, 324, 395, 426, 504, 506, 109 and 114 of Indian Penal Code 2 (IPC) read with Section 34 of IPC and to investigate the case and to file the charge-sheet in the proper Court of law against them. He further prayed for direction to appoint a Special Investigating Agency other than the Nalasopara, Virar Vasai and Manikpur Police Station or alternatively CBI, Mumbai to investigate the crime and to prosecute Respondent Nos. 2, 3 and 4 i.e. Sharad Ugale, J.K. Sharma and Permanand Mishra and their men for the offences committed by them against the Petitioner. 3.This Petition was disposed on 8.10.2008 by relegating the Petitioner to the alternative remedy of filing a private criminal complaint before the competent Court of Metropolitan Magistrate or Judicial Magistrate, First Class, as the case may be, and this Court refused to exercise extra-ordinary jurisdiction under Article 226 of the Constitution. 4.This Application has been filed subsequent to the disposal of Criminal Writ Petition No.1000 of 2008, praying for directions to the Registrar of this Court to take appropriate steps to file criminal complaint against the present Respondent No.1-Shri J.K. Sharma for the cognizance of offence of perjury committed by him under Section 191, Indian Penal Code (IPC) and punishable under Section 193 of the said Code. It is 3 stated more particularly that in paragraphs 5, 11, 25, 28 and 33 of the Affidavit dated 29th July 2008 and in the subsequent Affidavit of 25th August 2008, the present Respondent No.1 has made false statements on oath and, therefore, he is liable to be prosecuted for the offence punishable under Section 193 of IPC. Reference has been made to the statement that the eviction order dated 11.2.2006 passed in Suit No.PP/26/2004 by the Estate Officer was communicated to the Applicant (Sudhakar Bhojaya Shetty). Mr.Deshmukh submitted that this was an utterly false statement and the order dated 11.2.2006 was never communicated to the Applicant. Respondent No.1 thus made a false statement on oath before this Court. Respondent No.1 has filed an Affidavit-in-reply in this Application as well and has denied that he made any false statement on oath in either of his Affidavits filed in Writ Petition No.1000 of 2008. 5.During the course of arguments, Mr.Deshmukh, the learned Counsel for the Applicant, has taken us through paragraphs 5, 11, 25, 28 and 33 of the Affidavit dated 29th July 2008 and we have also perused the subsequent Affidavit filed by Respondent No.1 on 25.8.2008 in Writ Petition No.1000 of 2008. In paragraph 33 of the Affidavit dated 29.7.2008, the present Respondent No.1 stated thus:- 4 33. With reference to the paragraph 28 in the said application the Petitioner (Mr.Sudhakar Bhojaya Shetty) was given full time and opportunity to present his case and due process of law properly followed and order was passed on the merits of the case before the Estate Office. As the petitioner s encroachments on Railway s land was of soft in nature like tarpolene and polythene so, the same can be cleared off from Railway land as per sub sec (3) of section 5(A) of the PPE Act 1971. In paragraph 5 of the said Affidavit, the present Respondent No.1 had clarified that in Suit No.PP/26/2004, 179 cases were decided, as per the order dated 11.2.2006, against 179 persons unauthorisedly occupying the Railway land at Nalasopara. They were given notice for demolition of the unauthorised structures on 22.2.2008 and they were informed that the demolition would be carried out from 26.2.2008 to 28.2.2008. It has been further clarified that the order dated 11.2.2006 was in respect of the permanent structures and when the party went at the site to remove the permanent structures on 26.2.2008 and 27.2.2008, it was noticed that in addition, there were 60 soft structures, including the one of the Applicant. The soft structure 5 means the structure which is erected with the help of tarpolene sheets and jets into public road. It has been further stated in paragraph 34 of the Affidavit dated 29.7.2008 that the Applicant was called upon to remove the soft structure and he agreed to do so with the help of his own men. So far as the permanent structure of the Applicant is concerned, it has been made clear in both the Affidavits that his case was pending. Our attention has also been invited to the provisions of Section 5A(3) of the PP Act, where the Estate Officer is authorised to remove the soft structure without notice. We have also been shown the order / communication dated 11.2.2008 in respect of the soft structure claimed to have been erected by the Applicant. 6.We are, therefore, satisfied that both the Affidavits filed in Criminal Writ Petition No.1000 of 2008 by the present Respondent No.1, did not state that the order dated 11.2.2008 passed in Eviction Suit No.PP/26/2004 was communicated to the Applicant and, therefore, there is no case made out to entertain this Application. 7.Hence, the Application is rejected. [SMT.ROSHAN DALVI, J.] [B.H. MARLAPALLE, J.]