Application u/s. 482 Cr.P.C; Harsh Mander Vs. Amit Anilchandra Shah [Bombay HC]

Criminal P.C. 1973 – Ss. 482, 397 & 245 – Application under – Condonation of Delay – Applicant shown sudden interest in matter after period of over 10 years gives indication of lack of bonafides – Criminal law cannot be permitted to be used as instruments to wreck vengeance due to personal or political grudge or to spite accused for any other oblique purpose – Hence, application dismissed.

Application u/s. 482 Cr.P.C


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CORAM : SMT. ANUJA PRABHUDESSAI, J.

PRONOUNCED ON : MARCH 11, 2016.

CRIMINAL APPLICATION NO.1248 OF 2015

Harsh Mander S/o. Har Mander Singh R/o. 6233/C6, VasantKunj, New Delhi-110070 .. Applicant v/s. 1. Amit Anilchandra Shah R/o 10, Shiv-Kunj Society, Near Sanghvi High School, Hasmukh Colony, Naranpura, Ahmedabad 380013 2.Central Bureau of Investigation, Special Crime Branch, Mumbai 3.State of Maharashtra ..Respondents Mr. Anand Grover, Sr. Advocate with Mr. Ayaz Khan i/b. Ms. Zehra Charania for the Applicant. Mr. S.V. Raju, Senior Advocate with Ms Khushbu Jain i/b. Dhurve Liladhar & Co. for Respondent No.1 Mr. Anil Singh, Additional Solicitor General with Mr. S.K.Shinde Addl.PP. And Y.M. Nakhwa Addl. PP for CBI-Respondent No.2. Ms R.V. Newton, APP for Respondent No.3-State.

JUDGMENT.

1. By this application filed under Section 482 of Cr.P.C. the applicant has prayed for quashing and setting aside the order dated 30.12.2014, discharging the respondent no.1, one of the accused in Sessions Cases Nos. 177 of 2013, 178 of 2013, 577 of 2013 and 312 of 2014 pending in the Sessions Court, Gr. Bombay at Mumbai. The applicant has also sought to direct an independent agency to investigate the circumstances under which Rubabuddin Shaikh, the applicant in Criminal Revision Application (St.) No. 413 of 2015, has approached this Court for withdrawal of the said revision application and the application for condonation of delay.

2. The brief facts necessary to decide this application are as under: . The respondent no.1 had filed a discharge application in the aforestated sessions cases. By order dated 30.12.2014, the learned Sessions Judge, Gr. Bombay allowed the discharge application and consequently discharged him of the offences u/s. 120B, 364, 365, 368, 341, 342, 384, 302, 218 rw/. 201 of IPC. The said order was not challenged by the CBI, but was challenged by Rubabuddin, the brother of the deceased Shorabuddin, by filing Criminal Revision Application No.413 of 2015, along with an application for condonation of delay being Cri. Application No.355 of 2015.

3. By application dated 5.10.2015, said Rubabuddin had sought to withdraw the said revision application as well as the application for condonation of delay. The said application was allowed by this court by order dated 23.11.2015. Accordingly, the application for condonation of delay was disposed of as withdrawn. Consequently, the revision application was also disposed of.

4. The applicant had filed this application during the pendency of the withdrawal application dated 5.10.2015, filed by Rubabuddin Shaikh. The applicant claims that the crime being a gross case of custodial murder has caused violence, trauma, fear and loss not only to the interested parties, but also to the entire law abiding society. The applicant claims that though there is sufficient prima facie material to proceed against the respondent no.1, the CBI did not challenge the discharge order which has resulted in abuse of process of law and gross failure of justice. The applicant claims that Rubabuddin, the brother of the deceased Sorabuddin, who had challenged the said order had sought to withdraw the revision application as well as the application for condonation of delay, and as such it was left to the concerned citizens to pursue the matter in order to ensure justice in the larger interest of the society. The applicant claims that withdrawal of the revision application by Rubabuddin appears to be suspicious, under threats, inducement and promise. The applicant, who claims to be a socially responsible citizen has thus filed this application for the reliefs as stated above.

5. At the outset it may be mentioned that Mr. Raju, the learned Sr. Counsel for the respondent no.1 has submitted that the application is liable to be dismissed for suppression of material fact and for approaching the court with unclean hands. Elaborating this submission, the learned Counsel for the applicant has submitted that this court by order dated 21.10.2015 had dismissed a similar application filed by one Rajesh Kamble and that the applicant had suppressed the said material fact. Relying upon the decision

Ram Naran Vs. Ramesh Narang 1995 (2) SCC 513

the learned senior counsel for the Applicant has submitted that a litigant cannot play hide and seek with the court and must approach the court candidly and with clean hands.

6. Whereas, the learned Sr. Counsel Shri Grover has submitted that the relief sought by Shri Kamble was entirely different from the relief sought by the applicant in this case. He has submitted that the order passed in Cri. Application No.420 of 2015 is not relevant for deciding this application.

7. It is to be noted that by application dated 5.10.2015 Rubabuddin Shaikh, the brother of the deceased Sorabuddin had sought leave to withdraw the said revision application as well as the application for condonation of delay. During the pendency of this application one Shri Rajesh M. Kamble, who claimed to be an alert citizen, had filed an application being Criminal Application No.420 of 2015, opposing withdrawal of the said application by Rubabuddin Shaikh. The said application was dismissed by this court on merits by order dated 21.10.2015, interalia holding that the applicant Rajesh Kamble was neither a victim nor an aggrieved person. It was further held that the said applicant had not demonstrated that his legal rights were impaired or that any harm, injury was caused him or likely to be caused due to withdrawal of the Application. It was therefore, held that the Intervenor had no legal right to intervene in the proceedings, and accordingly the application filed by Rajesh Kamble was dismissed. 8. It is true that the applicant had not referred to this order in the present application. However, the same by itself would not be a ground to reject the application, moreover when the applicant has not obtained any favourable order by suppressing the said order dated 21.10.2015. The decisions relied upon by the respondent no.1 are therefore distinguishable and not applicable to the facts of the case. Consequently, the application cannot be dismissed on the ground of suppression of material facts.

9. Shri S.V. Raju, the learned Sr. Counsel for the respondent no.1 has also raised the issue of maintainability of this application as well as the locus standi of the applicant in filing the application under Section 482 of Cr.P.C. The learned Senior Counsel for the applicant as well as the learned Sr. Counsel for the respondent no.1 have stated that since the issue of maintainability goes to the root of the matter, the same should be decided at the threshold. Hence both the learned Senior Counsels were heard on these preliminary objections raised by the learned Sr. Counsel for the respondent no.1. 10. Shri Grover, the learned Sr. Counsel for the applicant has submitted that the learned Sessions Judge has discharged the respondent no.1 by order dated 30.12.2014. The CBI had not challenged the discharge order, hence Rubabuddin, the brother of the deceased was compelled to file the revision application alongwith an application for condonation of delay. The learned Sr. Counsel has submitted that since Rubabuddin, the aggrieved party had already filed a revision application, it was not necessary for the Applicant to challenge the discharge order. He has submitted that filing of withdrawal application by the aggrieved party has necessitated the applicant, a concerned citizen, to file the present application.

11. The learned Senior Counsel for the applicant has further submitted that the opening words “Nothing in this Code …” in section 482 of the Cr.P.C. is a non-obstante clause and it has overriding effect over other provisions including Section 397(2) of Cr.P.C. Mr. Grover, the learned senior counsel therefore, contends that even when the order is hit by Section 397(2) Cr.P.C. the inherent powers under Section 482 Cr.P.C. are wide and can be exercised to prevent abuse of process of court or to secure ends of justice. In support of this contention, he has relied upon the judgments of the Apex Court in