Research › Search › Judgment

Bombay High Court · body

2014 DIGILAW 1944 (BOM)

Sandip Shankarlal Kedia v. State of Maharashtra

2014-09-04

P.D.KODE, V.M.KANADE

body2014
JUDGMENT : Heard the learned counsel appearing on behalf of the Petitioner, the learned APP appearing for Respondent No. 1 and the learned counsel appearing for Respondent No. 2. By this petition, which is filed under Article 226 of the Constitution of India, Petitioner is challenging the legality, validity and propriety of the impugned order of proclamation issued by the learned Metropolitan Magistrate dated 3.3.2014 in C.R. No. 263 of 2012. Petitioner is also seeking to quash and set aside the impugned order of "Lookout Notice/ Circular/Notice, issued in connection with C.R. No. 263 of 2012. 2. A preliminary objection is raised by the learned counsel appearing on behalf of Respondent No. 2 regarding maintainability of the petition. It is submitted that the Petitioner had, in fact, filed Criminal Application No. 203 of 2013 in Writ Petition No. 436 of 2013, 437 of 2013 and 3387 of 2013 challenging the look out notice, which was issued by the Respondent. It is submitted that before taking out such application, a submission was made before the Division Bench of this Court by the learned counsel appearing for the Petitioner that Petitioner wanted to file an application for stay to the look out notice, with a prayer that he may be allowed to come in India. Petitioner thereafter filed Criminal Application No. 203 of 2014. It is submitted that in fact on the next date when the said application was heard for sometime, the Division Bench by order dated 6th May, 2014 has allowed the Petitioner to withdraw the said application and no liberty was granted to take out such a petition. Our attention is invited to an order dated 6th May, 2014 passed in Criminal Application No. 203 of 2014, which was taken out by the Petitioner in Writ Petition No. 436 of 2013. It is submitted that Petitioner had filed another petition viz. Writ Petition (L) No. 1797 of 2013 in which there was a specific challenging to the red corner/lookout notice, which was issued against the Petitioner by Respondent Nos. 1 to 3 therein. It is submitted that the Division Bench of this Court while deciding the said petition on 2nd August, 2014, did not grant liberty to challenge the red corner notice and petition was partly allowed and the order of impounding the passport was set aside. 1 to 3 therein. It is submitted that the Division Bench of this Court while deciding the said petition on 2nd August, 2014, did not grant liberty to challenge the red corner notice and petition was partly allowed and the order of impounding the passport was set aside. Learned counsel for Respondent No. 2 fairly pointed out that in paragraph 4 of said order it is observed that all the disputes between the parties, including as to whether the Petitioner is bound to appear himself pursuant to the said show cause notice or whether he is entitled to appear through is advocate are kept open. It is submitted that nowhere liberty was granted in the said order to challenge the lookout notice and since there is no reference in the said order, it was sought to presume that such a prayer was not granted by this Court. Thirdly, our attention was also invited to an order passed by this Court dated 24th July, 2014 passed in Writ Petition No. 3387 of 2013, in which Petitioner herein had challenged the FIR, which was registered against him on various grounds, and had also challenged the lookout notice. It is submitted that the said petition was dismissed, and therefore, prayer challenging the lookout notice was also dismissed. Learned counsel for Respondent No. 2 pointed out the observations made by this Court in paragraph 4 of said order and submitted that since the application was allowed to be withdrawn, the prayer to withdraw or cancel the look out notice is also withdrawn. 3. It is submitted that though the said observation was made, in view of dismissal of the petition, said prayer also was not automatically granted, and it was dismissed. It is then submitted that since the Petitioner has challenged the lookout notice, Union of India and Passport Authorities are necessary party to the petition, and as long as said Respondents are added, Petitioner is not entitled to challenge the lookout notice. 4. On the other hand, learned counsel appearing for the Petitioner invited our attention to the prayer which was made in Criminal Application No. 203 of 2014. He submitted that in the said prayer the only relief claimed was that no coercive steps should be taken against the Petitioner in order to enable him to approach the appropriate authorities for the purpose of challenging the said proceeding. He submitted that in the said prayer the only relief claimed was that no coercive steps should be taken against the Petitioner in order to enable him to approach the appropriate authorities for the purpose of challenging the said proceeding. It is submitted that the only relief claimed in the said application was that "no coercive steps should be taken" and since the application was allowed to be withdrawn, the said relief was automatically allowed to be withdrawn. The prayer of quashing the lookout notice was not made in the application, and therefore it was not open for him to challenge independently the said lookout notice by filing this petition. 5. Secondly, it is submitted that so far as the prayer made in Writ Petition (L) No. 1797 of 2013 is concerned, said petition is filed mainly for the purpose challenging the impounding of the passport by the passport authorities; and other prayers are for consequential and incidental relief’s. It is submitted that this Court while partly allowing the said petition, in paragraph 7 of the order dated 2.8.2013 kept all the issues specifically open, and therefore, the Petitioner was not precluded from challenging the lookout notice. 6. Thirdly, it is submitted that so far as order passed by this Court dated 24th July, 2014 in Writ Petition No. 3387 of 2013 is concerned, in paragraph 4, the Court has kept open the issues regarding maintainability of the petition and right of the Petitioner to file a separate petition and the prayer for quashing the complaint was dismissed. 7. It is submitted that therefore, there was no bar either on the principle of res judicata or for any other reasons for the Petitioner to challenge the lookout notice and the proclamation order. He then submitted that he would like to add Union of India and Passport Authorities as party Respondents. 8. After having heard the learned counsel appearing for the Petitioner, and the learned counsel appearing for Respondent No. 2 at length, we are, firstly, of the view that withdrawal of Criminal Application No. 203 of 2014 was clearly restricted to the prayer which was made in the application. 8. After having heard the learned counsel appearing for the Petitioner, and the learned counsel appearing for Respondent No. 2 at length, we are, firstly, of the view that withdrawal of Criminal Application No. 203 of 2014 was clearly restricted to the prayer which was made in the application. The said prayers read as under : "(a) That the Criminal Application may be allowed; (b) That this Hon'ble Court may be kindly be pleased to protect the Applicant by an interim order of 'No coercive steps' to be taken against him till the time he presents himself before the lower courts with the appropriate application and/or proceedings for cancellation of warrants/proclamation; for bail and/or anticipatory bail in the aforementioned C.R. Nos. 181 of 2012 dated 15th December 2012; C.R. No. 190 of 2012 dated 29th December, 2012 and C.R. No. 263 of 2012 and C.R. No. 263 of 2012 dated 22nd December 2012 registered with Cuffe Parade Police Station and Amboli Police Station respectively; (c) Interim and ad-interim relief’s in terms of prayer clause (b) and above may kindly be granted; (d) Any other and further relief’s which this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may kindly be passed in favour of the Applicant." 9. In the application, however, averments have been made regarding the lookout notice and challenge to the said notice, which read as under : "The Applicant submits that indeed by no stretch of justification he is attempting to evading the process of the trial court and very much intends to appear before the trial court; nonetheless his sole apprehension to appear before the trial court is the possibility of being entangled into unaccounted false and frivolous litigations at the behest of his brother-in-law and being swayed behind the bars the moment he steps at the airport regard being had to the fact that his passport is already impounded by the concerned authorities vis-a-vis a lookout notice issued against him at the behest of his brother-in-law for the aforementioned matrimonial disputes. Thus the Applicant is willing to submit himself to the process of the trial court provided that he is given adequate protection to approach the trial courts for appropriate relief’s." 10. The Division Bench in the said application (Crim. Thus the Applicant is willing to submit himself to the process of the trial court provided that he is given adequate protection to approach the trial courts for appropriate relief’s." 10. The Division Bench in the said application (Crim. Application No. 203 of 2014) was pleased to pass the following order on 6th May, 2014 : "P.C. The order passed by the Additional Chief Metropolitan Magistrate dated 5th April, 2014 is placed on record today. We have gone through the said order. Learned Counsel submits that this order has been challenged and petition is coming up before the learned Single Judge of this Court on 8th May, 2014. 2. We have heard the submissions advanced by learned Counsel for the applicant and the learned Counsel for the respondents. After the application was heard for sometime, the Counsel for the applicant seeks leave to withdraw this application. 3. Without expressing any opinion on the contentions raised and the merits of the application, we grant leave to withdraw the application. Criminal Application is rejected as withdrawn." 11. Similarly, on the earlier date the counsel for the Petitioner made following statement: "Learned counsel Mr. Pradhan seeks to file an application in respect of look out notice requesting that the Petitioner be allowed to come to India." 12. Upon conjoint reading of the said application filed by the Petitioner on 25th April, 2014 being Criminal Application No. 203 of 2014 and the order passed Division Bench of this Court in the said application on 6th May, 2014, in our view, it is abundantly clear that only relief which was claimed by the Applicant was to give him some temporary protection in order to file an appropriate application. The wording of the application is very clear and therefore, it cannot be said that the application was made not for the purpose of challenging the lookout notice. Though there is some reference of lookout notice, that itself is not sufficient to come to the conclusion that, that was his prayer in the application. 13. Secondly, the said submission made by the learned counsel appearing for Respondent No. 2 cannot be accepted. So far as the order passed on the first petition which was filed by the Petitioner is concerned, paragraph 7 of said order (dated 2nd August, 2014) passed by the Division Bench needs to be looked into, which reads thus: "7. 13. Secondly, the said submission made by the learned counsel appearing for Respondent No. 2 cannot be accepted. So far as the order passed on the first petition which was filed by the Petitioner is concerned, paragraph 7 of said order (dated 2nd August, 2014) passed by the Division Bench needs to be looked into, which reads thus: "7. All the issues between the parties including as to whether the petitioner is bound to appear himself pursuant to said show-case notice or whether he is entitled to appear through his advocate are kept open." 14. The Petitioner in the Writ Petition (L) No. 1797 of 2013, firstly, challenged the order of impounding by the passport of the passport authority and other prayers relating to red corner or lookout notice. Prayer clauses (d), (e) and (f) are in respect of lookout notice, which are as under: "(d) That this Hon'ble Court be pleased to issue a Writ of mandamus or any other Writ, Order or Direction directing Respondent No. 1 to 3 acting through its officers, servants, agents or employees to withdraw any red corner or lookout notice if issued against the Petitioner; (e) That this Hon'ble Court be pleased to issue a Writ of mandamus or Writ in the nature of writ of mandamus restraining Respondent Nos. 1 to 3 acting thorough its officers, servants, agents or employees from issuing any red corner or lookout notice against the Petitioner pursuant to any complaint or proceeding that has been filed or may be filed with Respondent No. 1 by Respondent No. 4 or her Constituted Attorney: (f) That this Hon'ble Court be pleased to restrain Respondent No. 4 by herself or acting through her Constituted Attorney from filing any complaint or proceeding with Respondent Nos. 1 to 3 or with any other authority for issuing of red corner or lookout notice against the Petitioner. 15. Upon reading those prayers and observations made by the Division Bench of this Court in the order 2nd August, 2013, it is abundantly clear that all the issues between the parties were kept open and they were neither submitted in support of the said prayer nor was there any discussion of dismissal of the said prayer, and therefore, it is apparent that other contentions were kept open by virtue of observations made in paragraph 7 of order dated 2.8.2013. The Court every time used to mention about the particular liberty being granted. The fact that the Court has observed that particular issues are kept open, that itself means that those questions may be agitated by the parties. Lastly, the observations made by this Court in paragraph 4 of the order dated 24.7.2014 passed in Writ Petition No. 3387 of 2013, as under: "4. One of the prayers in the petition is that the look out notice which is taken out by the police should be withdrawn or cancelled. The learned counsel appearing on behalf of respondent No. 2 submitted that a criminal application was filed by the petitioner. However, the said application was allowed to be withdrawn and no liberty was granted. It is, therefore, submitted that the Petitioner now therefore cannot press this prayer. Since by virtue of the criminal application, the said prayer was not allowed to be withdrawn, we do not wish to express anything on merit or on the position of law regarding the right of the petitioner to file a separate petition. If and when such a petition is filed by the Petitioner, respondent No. 2 would have the right to raise her preliminary objection." 16. These observations, therefore, speak for themselves, and therefore, it is not necessary to make any comment on these observations. We have made clear that we would consider the question of law, as also the question regarding maintainability of the petition. From the above, in our view, it is clear that the petition challenging the lookout notice is maintainable. 17. The learned counsel appearing for the Petitioner seeks leave to amend the petition for adding Union of India and the Passport Authority, and other necessary authorities as party Respondents. Leave to amend is granted. Amendment to be carried out within one week. After amendment is made, issue notice to the added Respondents returnable within 3 weeks thereafter. The Respondents to file the reply before the next date and serve copy thereof on the counsel appearing on behalf of the Petitioner at least one day in advance. Learned APP waives service of notice on behalf of Respondent No. 4. S. O. 25.9.2014. 18. To be heard along with Original Side Writ Petition (L) No. 227 of 2014 is granted. Leave to amend Writ Petition (L) No. 227 of 2014 is granted.