KBP 1 cr.wp.2995-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO.2995 OF 2011 Krishan Thanwardas Moorjani ..Petitioner Vs The State of Maharashtra and anr. ..Respondents -- Petitioner-in-person is present. Ms.M.M.Deshmukh, APP for respondent State. Mr.B.Patil, P.S.I., Charkop Police Station is present. -- CORAM : A.M.KHANWILKAR & R.G.KETKAR, JJ. DATE : 13 th DECEMBER, 2011 P.C.: Petitioner appears in person. He submits that his advocate is not available as he has gone to attend some Court matter at Kalyan. That cannot be a ground for adjournment of the case, more so, because on the last occasion, the matter was adjourned as the advocate for the petitioner was not prepared in the matter and was KBP 2 cr.wp.2995-11.odt unwilling to proceed with the hearing of the matter. While showing indulgence, it was made clear that no request for adjournment or keeping back the matter will be entertained at the instance of the petitioner. We had observed that because on every date in the past, the Police Officer has remained present in Court to instruct the learned APP. 2] In this view of the matter, the petitioner prays to discharge his advocate on record and permit him to proceed in the matter. As per the oral request made by the petitioner, advocate on record of the petitioner is discharged. The matter proceeds on merit. 3] We have heard the petitioner-in-person. The relief claimed in this petition is to direct the 5 th Family Court, Bandra to register petitioner's application dated 4 th February, 2011 exhibit 31 as Misc. Judicial Case and to dispose of the same at the earliest in accordance with law keeping in mind the binding precedents of this Court as well as the Apex Court. The said application has been filed by the petitioner under Section 340(1) of the Code of Criminal Procedure, 1973 for initiating criminal action against respondent no.2 KBP 3 cr.wp.2995-11.odt for offences punishable under Sections 182, 191, 193, 199 and 209 of Indian Penal Code. The said application has been filed on the assertion that in the proceedings filed by respondent no.2 before the Family Court being M.J. Petition No.C-39 of 2009, she has alleged certain facts among others in paragraph 16 of the M.J. Petition, which are false to her own knowledge. Whether the assertions of respondent no.2 are factually incorrect, misleading or otherwise is a matter which can be conveniently decided at the end of the trial of the said M.J. Petition. The petitioner wants the said issue to be prejudged before the conclusion of the said proceeding by way of criminal proceeding under Section 340 of the code. In support of his submission, the petitioner has placed reliance on an unreported decision of learned single Judge of the Nagpur Bench of this High Court in Criminal Application No.1115/2007 decided on 11 th July, 2007 and decision of the Apex Court in K. Karunakaran Vs. T.V. Eachara Warrier reported in 1978 AIR 290. 4] In the unreported decision of Nagpur Bench of this High Court, the application filed by the applicant was rejected by the concerned Court where the same was presented. The learned single Judge of KBP 4 cr.wp.2995-11.odt this High Court set aside that order on the finding that it was necessary to hold enquiry before dismissing the said application. For that reason, the application was restored to the file for being considered afresh on its own merits in accordance with law. 5] As regards the decision of the Apex Court, in that case, an application under Section 340 of the Code was filed. The argument considered by the Apex Court, is that, in Appeal for Special Leave under Article 136 of the Constitution, whether it would be appropriate to interfere with the discretionary order passed by the High Court in complaint under Section 193 of Indian Penal Code after regular enquiry carefully made under Section 340 of the Code of Criminal Procedure, 1973. In the context of the said controversy, the Court proceeded to observe that the enquiry held by the Court under Section 340(1) of the Code, irrespective of the result of the main case, the only question is whether a prima facie case is made out which, if unrebutted, may have a reasonable likelihood to establish the specified offence and whether it is also expedient in the interest of justice to take such action. KBP 5 cr.wp.2995-11.odt 6] In the fact situation of the present case, the basis on which the petitioner has moved Criminal Application under Section 340 of the Code is that incorrect and false allegations have been made in the M.J. Petition. That issue cannot be prejudged as suggested by the petitioner. In other words, the option available to the Family Court is to consider the application filed by the petitioner for initiating the criminal action against respondent no.2 along with M.J. Petition or soon after the final decision in the M.J. Petition depending on the findings to be recorded on the issues raised by the parties in the M.J. Petition. 7] As regards the relief claimed by the petitioner to call upon the Family Court to register the petitioner's application dated 4 th February, 2011 as Misc. Judicial Case, there can be no difficulty in accepting the same as that will have to be done in terms of the settled legal position as, such application should be registered as Misc. Judicial Case. However, the further relief claimed by the petitioner in this petition cannot be entertained at this stage and, the same, in our opinion, is premature. KBP 6 cr.wp.2995-11.odt 8] Accordingly, petition is disposed of with liberty to the petitioner to pursue his application dated 4 th February, 2011 which is still pending before the Family Court, which will be proceeded in the light of the observations made in this order. The Family Court may issue appropriate directions in that behalf. 9] Needless to observe that dismissal of this petition is not expression of opinion either way on the merits of the contentions raised by the petitioner or defence available to respondent no.2. All questions in that behalf are left open. [R.G.KETKAR, J.] [A.M.KHANWILKAR, J.]