* 1 * W.P. 1448.2010 21.12.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 499 OF 2010 [FOR RESTORATION] IN CRIMINAL WRIT PETITION NO. 1448 OF 2010 The State Bank of India ...... Petitioner v/s. Rakesh Agrawal & Ors. ..... Respondents * * * * Ms. Heena Mody, Advocate for the petitioner/s. Mr. Niranjan Mundargi, Ms. Purvi Doctor i/by. India Law Alliance, Advocate for respondents no.2 to 6. Mr. V.B. Kondedeshmukh, APP for State * * * * CORAM : SMT. R.P. SONDURBALDOTA, J 21 December, 2010. P.C. : 1. This application is for setting aside the order dated 25th November, 2010 and for restoration of the Writ petition. By the order dated 25th November, 2010 the writ petition was dismissed on account of default on the part of the petitioner and also because it was found that the petition as filed is not maintainable in view of the order dated 18th November, 2005 passed by the Hon’ble Supreme Court. The explanation for absence of the learned advocate for the petitioner is found at * 2 * W.P. 1448.2010 21.12.2010 paragraph-7 of the application. At paragraph-9, it is contended that the order dated 18th November, 2005 of the Hon’ble Supreme Court was not applicable to the facts of the present case. 2. Mr. Mundargi, the learned counsel for respondents no.2 to 6, raises a preliminary objection as regards the maintainability of the present application. He submits that the present application is in the nature of review of the order dated 25th November, 2010. Since, there is no provision in the Criminal Procedure Code empowering any Court to review its order, he submits that the present application must be dismissed as not maintainable. Ms. Modi, the learned counsel for the petitioner, on the one hand, submits that the application is essentially for restoration of the writ petition which was dismissed for default. The order dated 25th November, 2010 does not dismiss the petition on the ground of default alone. The petition was also dismissed as the same was not found maintainable. In that circumstance, the application for restoration filed by the petitioner cannot be considered and allowed solely on the basis of the explanation for absence offered in the application. The Court will have to reconsider the other ground for dismissal of the petition i.e. the ground of maintainability. Therefore, the application is more in the nature of an application of review of the order. Since there is no provision in the Criminal Procedure Code * 3 * W.P. 1448.2010 21.12.2010 empowering a Court to review its own order, the application is liable to be dismissed on this ground alone. However, since Ms. Modi has vociferously argued the application consuming some length of the court’s time and since the order dated 15th November, 2009 of the Hon’ble Supreme Court is a complete answer to the complaint of the petitioner, this Court finds it appropriate to consider the arguments on merits advanced by Ms. Modi. 3. As has been stated in the application itself, the petition was partly argued on 19th November, 2010 and adjourned to 25th November, 2010 to enable the respondents to produce a legible copy of the order dated 18th November, 2005 of the Hon’ble Supreme Court. On the next date i.e. on 25th November, 2010 neither the representative of the petitioner bank nor the advocate for the petitioner was present in the Court when the petition was called out. At paragraph-7 of the application, the petitioner states that on 25th November, 2010 the matter was on the supplementary board at serial number 5. Ms. Modi, was under an impression that as per internet, the regular board would be taken up “ first and followed by the supplementary board”. Therefore, the representative of the bank reached the Court only by about 12.00 noon at which time, Ms. Modi was reading in the library. There can be no substance in the claim that both the petitioner and the advocate carried * 4 * W.P. 1448.2010 21.12.2010 an impression that the supplementary board would follow the regular board. The board system of the Court is compulsorily common to all the Courts. Under the system, the board of each Court consists of Regular Board and Supplementary Board. The Regular Board is prepared once a week on every Friday of the week. It lists the cases for each day of the next week as per the dates granted by the Court or by the office in case of fresh matters. The Supplementary boards consists of either the part- heard or urgent matters which are adjourned within the week itself. Therefore, the supplementary board always necessarily precedes the regular board. This practice is known to all the concerned persons. Therefore, there can be no scope for an impression as claimed being carried by either the petitioner or by Ms. Modi. In any case, like everyday’s board, the board dated 25th November, 2010 also carried a specific note at the top that This supplementary board will be taken “ first, thereafter main daily notified board for 25th November, 2010 will be taken”. This would mean that apart from the regular practice, the litigants and the lawyers are put to specific notice that the supplementary board would precede the regular board. In the circumstances, the explanation offered by the petitioner for the absence of its representative, as well as, its lawyer cannot be said to be satisfactory. * 5 * W.P. 1448.2010 21.12.2010 4. As regards maintainability, Ms. Modi, heavily relies upon the decision of the Single Judge of this Court in the case of Deepak Thanwardas Balwani V/s. State of Maharashtra & anr. reported in 1985 Cri.L.J. page 23 that the High Court can review or revise its judgment under its inherent powers as provided under Section 482 Criminal Procedure Code, if such a judgment is pronounced without giving an opportunity of being heard to the party, which is entitled to a hearing if that party is not at fault. She submits that in a similar set of facts, this High Court had reviewed its own order and granted an opportunity of hearing. The facts in the decision cited by Ms. Modi were that, the petitioner therein had filed criminal writ petition challenging an order of issuance of process and also prayed for quashing of the said proceedings. When the petition came up for hearing on 2nd February, 1984, it was adjourned to 13th February, 1984. However, the Sheristedar of the Court, inadvertently mentioned in the rojnama that the next date of hearing was 8th February, 1984. Thus, he made a mistake in not mentioning in the rojnama, the correct date of the hearing i.e. 13th February, 1984. Consequently, when the writ petition was called out for final hearing on 8th February, 1984, no one appeared before the Court for the petitioner. The Court went through the record and dismissed the writ petition having come to a conclusion that the complaint did disclose * 6 * W.P. 1448.2010 21.12.2010 a prima-facie case for issuing process and the rule was accordingly discharged. Being aggrieved by dismissal of the writ petition on 8th February, 1984, the petitioner filed review petition invoking the powers of the Court under Section 482 Criminal Procedure Code. The respondent in that petition had not disputed that there was genuine mistake as to the correct date of hearing being 13th February, 1984. However, it was contended by the respondent relying upon the decision of the Apex Court in the case of State of Orrisa V/s. Ram Chander Agarwal reported in AIR 1979 SC page 87 that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise the revisional jurisdiction. The learned counsel appearing for the petitioners, in that case did not dispute this position in law. However, it was contended by him that the facts before the Supreme Court can be distinguished as the Orrisa High Court had reviewed its earlier judgment on the ground that there was no proper notice to the accused persons for enhancement of the sentence as the one issued to them was not that clear so as to enlighten the parties and the lawyers whether the enhancement of sentence was with regard to substantive imprisonment or of regularising * 7 * W.P. 1448.2010 21.12.2010 the amount of fine. The Single judge distinguished the decision of the Apex Court observing that, in the case before him there was no notice at all to the petitioner that the writ petition would be taken up for hearing on 8th February, 1984 and infact the petitioner was told that it was fixed for hearing on 13th February, 1984. Therefore, there was every reason for the petitioner and his lawyer to remain absent on 8th February, 1984. It therefore held that in its inherent powers as provided in Section 482 Criminal Procedure Code, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer. It is thus seen that the facts of the case in the decision cited were gross. There was a clear mistake on the part of the office of the Court in noting the date of hearing of the petition. The party was not at all at fault and since the mistake was of the Court, the party was not allowed to suffer. The facts of the case in hand are completely different. Not only the petitioner had notice of the date of hearing of the petition, but admittedly it was a matter which had been partly heard on the earlier date and it had been adjourned only because the order of the Hon’ble Supreme Court which the respondent wanted to produce was not legible. Therefore the decision cited by Ms. Modi, cannot come to * 8 * W.P. 1448.2010 21.12.2010 the rescue of the petitioner. Even as per the decision, when the court has to review its order in exercise of its inherent powers under Section 482 Criminal Procedure Code, the same is required to be done in case of extreme hardship and in the case of total lack of opportunity for which the party is not at fault at all. In such extra-ordinary circumstances, inherent powers of the Court are to be exercised to serve the interest of justice. 5. It has next been contended by Ms. Modi, that in the facts of the present case, the order dated 18th November, 2005 are not attracted at all. It has been contended at paragraph-9 of the application and also submitted by Ms. Modi that the issue involved in the petition filed by the petitioner is altogether different from the issue before the Hon’ble Supreme Court. The petitioner bank had granted facilities to the extent of Rs.4.25 crores to a company by name Henex Dairy & Food Products (in short the company’). The petitioner had filed proceedings in the ‘ Debt Recovery Tribunal, Mumbai for recovery of amount of loan together with interest. The Tribunal issued recovery certificate against the company and its directors that were involved in Special Case No. 34 of 2004 under the Maharashtra Protection of Interest of Depositers (In Financial Establishments) Act, 1999 (for short M.P.I.D. Act’). But, the ‘ properties of the company were secrutarised as per Section 8 of M.P.I.D. * 9 * W.P. 1448.2010 21.12.2010 Act and the necessary intimation to the Collector, Old Customs House, Mumbai vide letter bearing number 9153/SBK/SASHA/0W/2033 dated 18th October, 2003 was given by the police. Copy of that letter had been sent to the Home Department also. Therefore, the Debt Recovery Tribunal directed the petitioner bank to obtain an order of release of the property from attachment from the Sessions Court by making an application in the Sessions Court proceedings. The petitioner then filed an application in the Sessions court for the purpose in September, 2008 for release of the property from attachment. The Sessions Court rejected the application by its order dated 1st December, 2009 which was challenged by the petitioner by filing Writ petition No. 1448 of 2001 which had been dismissed on 25th November, 2010. 6. On 25th November, 2010, the learned counsel for the respondent, produced a copy of the order dated 18th November, 2005 passed by the Hon’ble Supreme Court in a group of petitions for Special Leave to Appeal wherein the following order was passed :- In view of the amount involved in the various transactions and the “ number of prosecutions launched under the provisions of Maharashtra Protection of Interest of Depositors (in Financial Establishments) Act, 1999 we grant interim stay in the following manner : In cases where investigation are in progress, the prosecuting * 10 * W.P. 1448.2010 21.12.2010 agency shall continue with the investigation. But there shall not be further prosecutions of the accused persons and as regards pending case, the status-quo as on today shall be maintained. It is submitted that in 9 cases already accused persons have been convicted and the convicted persons would be at liberty to apply for bail and the Court would be at liberty to pass order granting bail. The interim attachment granted by the competent authority shall subsist until further orders. However, in cases where applications for release of attachment have been filed the same should be disposed off in accordance with law by separate orders. There shall not be sale of attached properties. The Authorities shall not take any coercive steps to recover the amount under the Act.” (emphasis supplied). 7. Ms. Modi, submits that, this order cannot be extended to the facts of the present case. She heavily relies upon the decision of the Single Judge of this Court dated 2nd February, 2010 passed in Writ Petition No. 1304 of 2009 (Dushyant Madhukant Mehta V/S. The State of Maharashtra & Ors.) and submits that despite the order dated 18th November, 2005 this Court had allowed the application filed for raising the attachment. Therefore, according to her there can be no impediment in this court also considering the application for raising of the attachment. Ms. Modi has lost sight of the facts in Cri. Writ Petition No. 1304 of 2009. In that case, an application for attachment of the * 11 * W.P. 1448.2010 21.12.2010 property under M.P.I.D. Act had been made on 26th December, 2006. The Sessions Court had allowed that application and attached the property despite the order of the Apex Court dated 18th November, 2005. Since in view of that order, no proceedings could have been initiated or continued after the Act had been struck down, it was held that no interim order of attachment could also have been granted. Consequently, the order attaching the properties was set aside, and the property released from the attachment. In the present case, the property was attached in the year 2003. By the specific direction of the Hon’ble Supreme Court, the interim attachment granted by the Comptent Authority is to subsist until further orders. Therefore, if at all any application the bank desired to file for raising of that attachment, it was required to approach the Hon’ble Supreme Court alone and neither the Sessions Court, nor, this Court. The concession for hearing of applications for release of attachment under the order was limited to such applications as had been already filed and pending as on 18th November, 2005. Hence, the application of the bank to the Sessions Court was clearly not maintainable. It is thus seen that even on merit, there is no substance whatsoever in the application of the petitioner. Hence, the application is dismissed. * 12 * W.P. 1448.2010 21.12.2010 (SMT. R.P. SONDURBALDOTA, J)