Bombay High Court
Mohini Naraindas Kamwani And Anr vs Purushottam Karad And Ors on 21 July, 2016
Bench: S.C. Dharmadhikari
Judgment-Cri. APPW.150.2016+.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL MISCELLANEOUS APPLICATION NO. 150 OF 2016
IN
CRIMINAL WRIT PETITION NO. 439 OF 2014
1. Smt. Mohini Naraindas }
Kamwani }
Age 81 years, resident of }
101, Mauli Society, A Wing, }
Plot No. 29C, Sector No. 4, }
Vashi, Navi Mumbai 400703 }
}
2. Mr. Dilip Naraindas }
Kamwani }
Age 61 years, resident of }
Mauli Society, A Wing,
Plot No. 29C, Sector No. 4,
Vashi, Navi Mumbai 400 703 }
}
}
Applicants
versus
1. Laxman Bhausaheb Kale }
Deputy Superintendent of }
Police, CID, Crime, Pune }
}
2. R. B. Sardesai }
Assistant Commissioner of }
Police, }
Deputy Superintendent of }
Police, }
Head Quarters, Sangli }
District }
}
3. State of Maharashtra } Respondents
WITH
CRIMINAL MISCELLANEOUS APPLICATION NO. 234 OF 2016
IN
CRIMINAL WRIT PETITION NO. 427 OF 2014
1. Smt. Mohini Naraindas }
Kamwani }
Age 81 years, resident of }
101, Mauli Society, A Wing, }
Plot No. 29C, Sector No. 4, }
Vashi, Navi Mumbai 400703 }
2. Mr. Dilip Naraindas }
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Kamwani }
Age 61 years, resident of }
Mauli Society, A Wing, }
Plot No. 29C, Sector No. 4, }
Vashi, Navi Mumbai 400 703 } Applicants
versus
1. Purushottam Karad }
Ex-DCP Vashi, Zone - 1, }
Presently Addl. SP, }
Amravati SP Office, }
Amravati, Maharashtra }
}
2. Ahmad Javed }
Ex-Navi Mumbai Police }
Commissioner, }
Presently Ambassador of }
Saudi Arabia, B-1, ig}
Diplomatic Quarter, }
P. O. Box 94387, }
Riyadh - 11693, }
Saudi Arabia }
}
3. Advocate Madhav Thorat }
3-A/B/C/D, 2 nd floor, }
Building No. 35, Ambalal }
Doshi Marg, Behind Dena }
Bank, Share Market Branch, }
Fort, Mumbai 400 023 }
}
4. Advocate Amit Desai }
133, Jehangir Bldg., M. G. }
Road, Nr. Globus Showroom, }
Fort, Mumbai - 400 001 }
}
5. Advocate Shirish Gupte }
nd
2 floor, Old Oriental }
Building, Opp. HSBC Bank }
Fountain, Fort, Mumbai }
}
6. Advocate V. M. Thorat }
nd
3-A/B/C/D, 2 floor, }
Building No. 35, Ambalal }
Doshi Marg, Behind Dena }
Bank, Share Market Branch, }
Fort, Mumbai 400 023 } Respondents
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Smt. Mohini Naraindas Kamwani -
applicant no. 1 present in person.
Mr. Dilip Naraindas Kamwani - applicant
no. 2 present in person
Mr. V. M. Thorat i/b. Mr. Pratap Patil for
respondent nos. 1 and 2 in Cri. APPW/
150/2016.
Mr. S. K. Shinde - Public Prosecutor with
Mr. J. P. Yagnik - APP for respondent
State.
CORAM :- S. C. DHARMADHIKARI &
DR. SHALINI PHANSALKAR-JOSHI, JJ.
ig Reserved on 16 th June, 2016
Pronounced on 21 st July, 2016
JUDGMENT :- (Per S. C. Dharmadhikari, J.)
1. The applicants to this criminal application (Criminal
Miscellaneous Application No. 150 of 2016) are the original
respondents in Criminal Writ Petition No. 439 of 2014. That was
filed by respondent nos. 1 and 2 to this application. The prayer in
that application was to quash and set aside an order passed by the
Judicial Magistrate, First Class, Vashi dated 1st February, 2014 in
Other Miscellaneous Application No. 91 of 2014, by which, it was
directed that the concerned police station shall investigate the
crime as against four accused, two of whom were the petitioners
in Criminal Writ Petition No. 439 of 2014.
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2. It is common ground that this writ petition together with
Criminal Writ Petition No. 427 of 2014 and the criminal
applications therein were heard and decided by a Division Bench
of this court, to which, one of us (S. C. Dharmadhikari, J.) was a
party.
3. By a detailed judgment and order and after hearing all the
parties including the present applicants, both petitions were
disposed of as under:-
"64. With this clarification, we conclude this judgment.
Hence, in the light of the above discussion, the following
order:-
(i) Rule in Criminal Writ Petition No. 427 of
2014 is made absolute in terms of prayer
clause (a).
(ii) Rule in Criminal Writ Petition No. 439 of
2014 is discharged and the Writ Petition is
dismissed.
(iii) Criminal Application Nos. 50 and 51 of
2015 do not survive in the light of our above
conclusion.
(iv) We clarify that our observations and
conclusions are prima facie and tentative and
shall not influence the criminal Court while
proceeding and trying the criminal case.
(v) All contentions on the requirement of
sanction and on merits of the charges, of both
sides, are kept open."
4. Thus, Rule in Criminal Writ Petition No. 439 of 2014 was
discharged and that writ petition was dismissed. The other
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Criminal Writ Petition No. 427 of 2014 was allowed and the order
of the Judicial Magistrate, First Class referred above was quashed
only to the extent of the petitioners therein.
5. Now, by this application, the applicants are seeking the
following reliefs:-
"24. a) Admit and allow the present Application;
b) Issue Directions to all the 8 Contemnors Chief
Secretary Maharashtra, Chief Minister/Home Minister/
Law Minister, Government, DGP, Navi Mumbai Police
Commissioner and Vashi Police to URGENTLY Register
the FIR against Our Original Accused SPI Laxman Kale
& Raosaheb Sardesai in 24 Hours, as Ordered by this
Hon. Court vide its Order dated 16-10-2015 in Crim. WP
439/2014 and send the Compliance Report to this Hon.
Court in next 24 Hours;
c) Take suo moto cognizance of Gross, Willful
& Deliberate Contempt of Court - of Hon. SC and
this Hon. Court committed by ALL the 8 Contemnors
and proceed against and issue Contempt Notices to all 8 of
them under provisions of Contempt of Court's Act as the
Maharashtra Authorities have done REPEAT Contempt
of Court again and again and the Authorities have
been Habitual Contemnors in my Cases, despite the
Petitioners Cautioning them that they were doing Gross,
Willful & Deliberate Contempt of Court - of Hon. SC and
this Hon. Court - earlier also and vide their 3 Notices -
Hence Petitioners request for an order punishing them
with imprisonment and/or fine in accordance with law;
d) Issue clear Directions to Contemnor Vashi
Police and All the Contemnors that Sanction is Not
Required based on ENOUGH Prima facie Documentary
Evidences on record that the Accused have Filed False
case, done Forgery in Arrest forms and Station Diary,
filed False Affidavits, etc. ....."
6. At the outset and before proceeding further, it is fairly
stated that after this application was filed, the concerned police
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station has registered FIR on 18th May, 2016 against accused
Laxman Kale and Raosaheb Sardesai in terms of the order passed
on 16th October, 2015 in Criminal Writ Petition No. 439 of 2014.
7. Thus, the essential grievance of the applicants and
regarding non compliance with the orders and directions of this
court has been redressed albeit belatedly.
8. Now, the prayer clauses (c) and (d) are in the nature of
contempt.
9. For appreciating that part of the grievance and the request
to initiate contempt proceedings against the respondents, we
would have to note some basic facts.
10. A private complaint was filed in the court of Judicial
Magistrate, First Class, CBD Belapur, being regular criminal case
and Other Miscellaneous Application No. 91 of 2014. The
applicants before us are the original complainants. It is their case
that applicant no. 1 resides with her unmarried son, namely,
applicant no. 2 and a mentally challenged daughter, namely,
Kanta. The second daughter of applicant no. 1 Sumita Karani
resides in Vashi along with her husband. Sumita Karani has
three sons, one residing at Andheri, one at Dubai and one in USA.
Sumita Karani is stated to have sold her Vashi flat and her son
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has also sold the Andheri flat and therefore, the applicants are
not in a position to ascertain the whereabouts of this second
daughter.
11. There is a son by name Manoj Karani of the second
daughter Sumita. He is residing at Dubai. He is the grandson of
applicant no. 1. He approached applicant no. 1 with an intention
to forcefully obtain her signatures on some documents and her
bank details. Though the relations with Sumita and her children
and applicant no. 1 are strained and they have been severed by
applicant no. 1 in 2007 itself, the applicants were surprised that
the grandson of applicant no. 1 could approach her in this
manner. That is how the complainants/applicants protested and
the said Manoj Karani left the premises. However, his threats
and intimidation continued through various means. It is the case
of the applicants that they had approached original accused no. 2
on 24th December, 2010 to register a case of criminal intimidation
against her grandson, but only a non-cognizable case was
registered. The complainants alleged that Manoj Karani visited
their house on several occasions threatening them with dire
consequences and by allegedly stating that he has links with the
underworld and one Hiten Sampat, who has criminal antecedents.
It is in these circumstances that the matter was followed up by
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the applicants with accused no. 2, but they were informed that
the dispute is civil in nature and therefore, the police cannot
render any assistance to them. It is the applicants'/original
complainants' case that such an approach of the police surprised
them though the concerned police officer was repeatedly
informed by the complainants that their life is in danger in view
of the intimidation and continued threats from Manoj Karani.
12. When no steps were taken, complainant no. 1 addressed a
letter to the Chief Minister of the State explaining her grievance
and the harassment faced by her. As a consequence of this letter,
complainant no. 1 was approached by the officers of Vashi Police
Station and they promised complainant no. 1 that appropriate
action will be taken. They asked her to give an undertaking that
they would not sit on any protest fast. Even after all this, since no
action was taken, complainant no. 1 addressed a letter to the
Senior Police Inspector of Azad Maidan Police Station and sought
permission to sit on "peaceful hunger strike" on 16 th January,
2012. This was the protest against the inaction of the police.
After this intimation, complainant no. 1 indeed commenced her
hunger strike at the said concerned police station. She was
stationed there for three days. She addressed letters to various
authorities informing them that she intends to continue her
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hunger fast for an indefinite time, till justice is done. After this
step by complainant no. 1, a high ranking officer of Azad Maidan
Police Station visited her and convinced her that action will be
taken on her complaint and she should not take any steps that
would be considered contrary to the law of the land. That is how
the fast was called off and a written undertaking was also handed
over.
13. It is thereafter that the real grievance starts and that is two
police officers came at the residence of the complainants in the
morning of 25th January, 2012 and though the complainants were
allegedly informed that the officials had visited their residence to
register a FIR on their complaint and that they would have to
accompany them to the police station, later on, it is found that the
intention was otherwise. The complainants were told to sit inside
the police station without any information or explanation and
without any food or water. Later on, they were carried to the
court premises by few police officers including lady police official
and were asked to sit on a bench outside the court room of the
Judicial Magistrate, First Class. At around 4.45 p.m. on that day,
the complainants were produced before the learned Magistrate
and it was only at that stage that they realised that they were
produced as accused. They were shown as arrested. They were
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remanded to judicial custody for three days. All this happened
despite complainant no. 1 had called off her protest. Thereafter,
there are other allegations with regard to this wrongful arrest.
Later on, they came to be released. After their release, they made
the alleged complaint with senior police officials by narrating the
above instance of wrongful arrest. That is how they filed a writ
petition being Criminal Writ Petition No. 1857 of 2012 in this
court. On this writ petition, a detailed judgment was delivered by
this court and the criminal writ petition was partly allowed. The
respondents to that writ petition were directed by this court to
pay compensation of Rs.3 lacs each for their illegal arrest and
detention. In pursuance of the Division Bench judgment dated
13th June, 2013 and the liberty granted thereunder, the
petitioners availed of the remedy of filing a complaint in the court
of competent jurisdiction. That is how the subject criminal
case/miscellaneous application was filed and on which, an order
was passed by the Judicial Magistrate, First Class on 1st February,
2014.
14. That order was impugned in two writ petitions, namely,
Criminal Writ Petition No. 427 of 2014 and Criminal Writ Petition
No. 439 of 2014. The present applicants filed a criminal
applications being Criminal Application No. 50 of 2015 in
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Criminal Writ Petition No. 427 of 2014 and Criminal Application
No. 51 of 2015 in Criminal Writ Petition No. 439 of 2014. All
these proceedings were heard together and a Division Bench, to
which, one of us (S. C. Dharmadhikari, J.) was a party, passed,
after hearing the counsel appearing for the petitioners on those
petitions and the applicants in person before us, the order which
we have reproduced hereinabove.
15. In the present application, what is alleged is that firstly, the
orders and directions as reproduced above were not complied
with as the FIR was not registered. Then, it is urged that contrary
to the findings and conclusions in this judgment, the respondents
to this criminal application and the proposed contemnors have
sought sanction to prosecute the police officials/accused to the
criminal case. It is submitted that though the issue of sanction is
already raised and squarely dealt with in the judgment delivered
by the Division Bench in the aforesaid criminal writ petitions,
still, this issue of sanction was raised to dodge the registration of
the FIR.
16. It is then contended that the police have done forgery in
arrest form and station diary entries. They also filed false
certificates. This court has already rendered a conclusive finding
that the detention and arrest of the applicants is illegal and
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wrongful, still, what is being now projected is that the accused
police officials were acting in discharge of their official duties and
that would necessitate the sanction to prosecute them.
17. It is submitted that the facts as set out from para 10 of the
present application are undisputed. If these are the basis on
which the order directing registration of FIR came to be passed,
then, now these events, which are admitted, cannot be questioned
and by a back door and oblique method.
18.
Then, it is submitted that there are several vital documents
such as arrest form, which would evidence the factum of arrest.
These could not be produced by the applicants when the criminal
writ petitions of the accused police officials were heard. It is
submitted that the station diaries are forged and our attention is
invited to Annexure 'A-23' in the Supreme Court Special Leave
Petition (Cri) No. 6534 of 2013 and which document is also
annexed as Annexure 'H' to the present application. The
instances of alleged forgery in the station diary have been
highlighted at pages 11 and 12 of the criminal application and
copies of the relevant documents are annexed. It is in these
circumstances and when the accused police officials and the State
was directed to pay compensation to each applicant in the sum of
Rs.3 lacs that we must proceed on the footing that the accused
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police officials have committed criminal contempt. They have
deliberately and mischievously tried to project a different version
in the Hon'ble Supreme Court by questioning the admitted facts of
the applicants' wrongful and illegal arrest. Therefore, a case of
criminal contempt is made out.
19. That is not only made out from the affidavit filed by the two
accused police officials, but what emerges from the averments at
page 14(iii) onwards of this application, is that even the other
senior police officials whose writ petition was allowed by this
court and the order of the learned Judicial Magistrate First Class,
Vashi was set aside to that extent, have joined and conspired to
mislead this court. Reliance is placed upon certain directions to
one of the senior police official to take cognizance of the complaint
of applicant no. 1 and avoid a situation where she will sit on
protest fast. This means, such police officials, as were named as
accused by the applicants/original complainants, but they have
not been so arrayed are prima facie guilty. They are guilty of the
offences alleged and of criminal contempt as well. It is in these
circumstances that the applicants, by relying on the grounds in
the application, claim the aforenoted reliefs.
20. Since the applicants are appearing in person, we have been
lenient towards them. We proceeded on the footing that their
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understanding of law, the consequences that flow from final
judgment and order of the court, the contempt jurisdiction and its
ambit and scope is limited. Therefore, we were indulgent and
granted sufficient time to them to canvas oral submissions. We
have also taken on record certain compilations setting out the
written arguments. We take down their written notes of
arguments, as tendered, seriatim, as under:-
"PURSIS
ig Written Notes of Argument
(i) As certain developments have taken place after
the applicants filed the application on 21-3-2016 in the
Registry; hence we humbly request the Hon. Court to
please to take the following on record as crucial
additional materials facts, reasons and grounds -
amongst other grounds, etc. raised here and/or in my
main application and in all my Notices served to the
Respondents and the 8 contemnors, each raised and
contended without prejudice to the other:-
(ii) New multiple contempts of courts - Supreme
Court, Bombay High Court and JMFC, Vashi Court +
one more criminal conspiracy no. 3 and fraud on court
- to obtain a favourable order - by respondent nos. 1
and 2 and the 8 contemnors:-
(iii) After our filing the above application, Vashi Police
IO Ajit Gondhale, under a criminal conspiracy with
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respondent nos. 1 and 2 and all the 8 contemnors, sent
us one more shocking letter dated 11th April, 2016
telling us that the said Bombay High Court ordered FIR
will not be registered as the police have filed a report
in Vashi Court (?!) that now - we have to get the
sanction!!!
Annexed and marked as Exhibit "A" is a copy of the
said letter dated 11th April, 2016 of Vashi IO.
(iv) We approached Vashi Court and got the certified
copies from Vashi Court and we were shocked to find
that thepolice has not filed a report in Vashi Court; but
respondent nos. 1 and 2 namely ex-Vashi SPIs Laxman
Bhausheb Kale and Raosaheb Sardesai have yet again
made mockery of justice and have filed Criminal
Application No. 395 of 2016 on 11th April, 2016 in
JMFC Vashi Court - asking the lower court to grant
them a stay order against registration of FIR against
them - which is ordered by Bombay High Court.
Annexed and marked as Exhibit - "B" is a copy of the
said Criminal Application No. 395 of 2016 filed by
respondent nos. 1 and 2 on 11 th April, 2016 in JMFC
Vashi Court.
(v) This means - they are asking JMFC Vashi Court
Magistrate - Also - to do contempt of Bombay High
Court and Supreme Court.
(vi) Respondent nos. 1 and 2 are openly playing yet
another fraud on the court by not annexing the said
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Bombay High Court order dated 16th October, 2015 in
their Criminal Writ Petition No. 439 of 2014 in Vashi
Court - On prior sanction not required - but citing the
over ruled 2015 Bombay High Court judgment in
Criminal Writ Petition No. 4765 of 2014 and 8 other
petitions - which was decided - before on 9 th October,
2015 - so this judgment of Hon'ble Justice Ranjit More
and Ketkar is per incurium and hence not applicable.
(vii) Moreover, respondent nos. 1 and 2 have done
forgery and fraud - and arrested us and got us jailed in
a false case - which is not the matter in the said 2015
Bombay High Court judgment in Criminal Writ Petition
No. 4765 of 2014 and 8 other petitions - hence that
judgment is not applicable in our case.
(viii) Basically - as per the law of the land and
also law laid down by Hon'ble Supreme Court and
various High Courts in catena of judgments and the
ratios therein - it is not the official duty of any public
servant to - file a false case, do forgery in records as in
our case done by my accused SPIs SPI Laxman Kale
and Raosaheb Sardesai and that we have already
submitted various Supreme Court and other citations
on sanction not required in such cases - which have
also been quoted by Bombay High Court in its said
order dated 16th October, 2015.
(ix) Moreover, we have also submitted a copy of this
Hon'ble Supreme Court judgment as Exhibit "F" in our
main application - in Inspector of Police and Ors. vs.
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Battenapatla Venkata Ratnam and Anr. on 13th April,
2015 - Criminal Appeal No. 129 of 2013 ..... clearly
explaining that this Supreme Court judgment clearly
states that sanction is not required - where officers
indulge in fabrication of records, etc. which cannot be
said to be "in discharge of their official duty" and the
stage for sanction is no more res integra after the said
above Supreme Court judgment of 2015 - as it over-
rules all the previous years' Supreme Court judgments
and the ambiguity, if any, therein.
(x) As per the law - respondent nos. 1 and 2 have to
challenge the said Bombay High Court order in the
higher court i.e. Supreme Court - so under which
provisions of law - have they filed the said application
in the lower court - for the stay order against the
higher court (Bombay High Court) order.
(xi) Under which provisions of law - has the learned
Vashi Magistrate even allowed the accused to file the
said application in the lower court - for the stay order?
- Does the accused have the right to intervene in the
same JMFC Court in a case under section 156(3) Cr. P.
C. and ask for the stay order - before the charge-sheet
is filed?
(xii) We approached the learned Vashi Magistrate and
told her in detail that the respondent nos. 1 and 2 have
not annexed the Bombay High Court order dated 16 th
October, 2015 and they are playing a fraud on the
court and that we have already filed a Criminal
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Application No. APPW 150 of 2016 in Criminal Writ
Petition No. 439 of 2014 - for willful disobedience of
order of Bombay High Court ordered to register FIR
against them and the matter is kept for hearing on 25 th
April, 2016 in Bombay High Court - so please do not
grant them any stay order as it will amount to
contempt of Bombay High Court and Supreme Court -
hence we want to file the affidavit in reply in the said
Application No. 395 of 2016 filed by respondent nos. 1
and 2 - but the learned Magistrate told us - "The
matter is kept for argument on 16 th May, 2016 - Have
I issued you any notice to file your say? - No - Have I
passed any order in that? - No - I have to see whether
it is maintainable or not"
(xiii) Why did Vashi IO and all the 8 contemnor
Maharashtra authorities - fool us for 5 months from
16th October, 2015 - that Vashi Police has applied for
sanction - even after - I have served 4 notices of
contempt of court and these criminal conspiracies to
all of them?
(xiv) Vashi police and respondent nos. 1 and 2,
under a criminal conspiracy with all the Maharashtra
authorities (the 8 contemnors) through Vashi IO, are
now asking us to get the sanction - because in our 4 th
notice dated 27th March, 2016 to all of them I informed
them all that - after 3 months it has become deemed
sanction - as per the law laid down by Hon'ble supreme
Court and the ratio in Subramanian Swamy vs.
Manmohan Singh 2012 (vol. 1) SCC (Crim.) 104, - that
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if sanction is not granted in 3 months sanction will be
deemed to have been granted. I also cited 3 cases laws
of 3 High Courts on prosecution of public servants
based on the deemed sanction - after 2012 Supreme
Court subramnian Swamy judgment.
(xv) This amounts to - clear willful, deliberate, gross -
multiple contempts of Supreme Court + Bombay High
Court + JMFC Vashi Court + fraud on court and abuse
of court process - by respondent nos. 1 and 2 - in a
criminal conspiracy with - Vashi IO and all the
Maharashtra authorities the 8 contemnors - namely
NM CP, DGP, Home Department officials, CM + HM +
LM, the state of Maharashtra - As the authorities are
all my original accused.
(xvi) This also clearly proves - that instead of
protecting me 81 year old freedom fighter's widow and
my life and liberty and punishing the 2 accused guilty
cops respondent nos. 1and 2 - the State and all
Maharashtra authorities the 8 contemnors - are
conspiring with respondent nos. 1 and 2 - to inflict
further legal injuries to me, do multiple contempts of
all the courts, play fraud and abuse court process and
to delay the matter through such illegal and prolonged
litigations - where I suffer waste of time and money -
to cause me mental, physical and financial torture and
more legal injuries.
(xvii) Another proof of - involvement of the State
and all Maharashtra authorities the 8 contemnors
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including the CM + HM + LM, DGP, NM CP, Police and
Home Department officials - in the criminal
conspiracy is that - respondent nos. 1 and 2 have been
given president's medal and promoted by all
Maharashtra authorities the contemnors - as DSP -
even through 3 orders of FIR of Supreme Court +
Bombay High Court are issued against them since
2013?
(xviii) One more proof of - involvement of the State
and you all Maharashtra authorities including the CM
+ HM + LM, DGP, NM CP, Police and Home Department
officials - in the criminal conspiracy is that - Mr.
Swadheen Kshatriya, Chief Secretary of Maharashtra
has forwarded all my notices of non registration of FIR
and contempt of court by authorities - to the Home
Department by e-mails and copies sent to me by e-mail
and - Law and Judiciary Department, Government of
Maharashtra has also sent me a copy of letter dated 2nd
April, 2016 they have sent to the Under Secretary,
Home Department - forwarding my notice dated 27th
March, 2016 - about Vashi Police not registering my
FIR - for action on that - but even after this - all the
authorities the 8 contemnors have not registered the
said FIR - ordered by Bombay High Court?"
21. Thus, the applicants are primarily aggrieved by the delay in
registering the FIR. It is alleged that the delay is deliberate and
intentional. To urge that by raising irrelevant and frivolous
issues totally unconnected with the main grievance, the
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implementation and enforcement of this court's order is
postponed.
22. Then, it is the grievance of the applicants that this court
allowed Criminal Writ Petition No. 427 of 2014 and partly set
aside the order of the Judicial Magistrate, First Class reproduced
above, however, one of the petitioners therein Mr. Ahmed Javed,
who was then posted as the Commissioner of Police, Navi Mumbai
has later on earned several promotions and on the eve of his
retirement as the Commissioner of Police, Mumbai, he was
appointed as Indian Ambassador in Saudi Arabia. This official has
also misused his powers and authority. That was allowed to be
misused and he was rewarded as above. That is why the others,
who are named in the written arguments, are equally guilty. In
the note of arguments/written submissions tendered, before this
order was pronounced, the applicants have also named the
advocates as guilty and part of a larger conspiracy. The prayers
in Criminal Application No. 234 of 2016 in Criminal Writ Petition
No. 427 of 2014 read as under:-
"a) Admit and allow the present Application;
b) Isue Directions to Vashi Police to URGENTLY
Purushotam Karad and Ahmad Javed in 24 Hours and
send the Compliance Report to this Hon. Court in next 24
Hours;
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c) Take suo moto cognizance of Gross, Willful &
Deliberate Contempt of Court committed by ALL the
Respondents/Contemnors and Initiate Suo Moto
Contempt Proceedings against them under provisions of
Contempt of Court's Act 1971 and issue Contempt Notices
to All the Contemnors as they have been Habitual
Contemnors in my Cases, despite the Applicants
Cautioning them that they had done Gross, Willful &
Deliberate Contempt of Court vide their Notices to them
and asking them to approach the Hon. Court and get the
"FIR Quashing" Order dated 16-10-2015 Cancelled but
they have not responded - Hence Petitioners request for
an order punishing them with imprisonment and/or fine
in accordance with law under provisions of Contempt of
Court's Act 1971;
....."
23. After
perusing these criminal applications and all
annexures thereto so also all the pursis/written arguments
tendered from time to time, we are of the opinion that the
applicants are trying to re-argue Criminal Writ Petition No. 427 of
2014 and Criminal Application No. 50 of 2015 therein. The
Bench had extensively heard these applicants at the hearing of
the writ petitions covered by our judgment and order dated 16 th
October, 2015. We have allowed Criminal Writ Petition No. 427 of
2014. If the applicants were aggrieved by that part of the
judgment and order delivered by the Division Bench of this court,
then, their remedy was to challenge that order in a higher court.
Just as these applicants are blaming the unsuccessful petitioners
in Criminal Writ Petition No. 439 of 2014, namely, Mr. Laxman
Kale and Raosaheb Sardesai, against whom now a FIR is
registered, of defeating and frustrating the orders and directions
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of this court by inventing a plea of sanction and other irrelevant
issues by urging that the remedy of these two police officials was
to challenge the judgment delivered by the Division Bench in their
Criminal Writ Petition No. 439 of 2014 in a higher court, we are of
the view that the same principle would apply to the applicants'
request as well. We do not think that in the facts and
circumstances and now that the FIR is registered, any action is
necessitated, particularly in contempt. We must remind the
applicants that the power of contempt is vested in this court. It is
a matter between the court and the proposed contemnors. The
role of the applicants is over after bringing to the notice of this
court the alleged contempt. Whether the acts as alleged fall
within the definition of the term "criminal contempt" has to be
examined by the court. The court is aware of the definition of the
term "criminal contempt" as defined in section 2(c) of the
Contempt of Courts Act, 1971. Although we do not approve of
tactics to delay the implementation and enforcement of this
court's judgment in the writ petitions and registration of the FIR,
we do not think that by such act alone we need to proceed in
contempt. We, therefore, do not take cognizance of the request
made by the applicants and dismiss this Criminal Application
No.234 of 2016 as well.
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24. We dismiss it also for another reason, because in the
Division Bench judgment, it is amply clarified that if during the
course of the proceedings before the trial court any material is
brought on record, which would enable the trial court to proceed
against the petitioners in Criminal Writ Petition No. 427 of 2014,
then, the judgment and order of this court in the above criminal
writ petition will not preclude the trial court from exercising such
powers as are permissible in law, including arraying or adding
these persons as accused. Therefore, any act of omission and
commission on their part and as highlighted in the application by
the applicants and amounting to a punishable offence can be
substantiated by them by bringing forward such materials as are
contemplated in law to proceed against them. We have no doubt
in our mind that if the power of the trial court to array additional
persons as accused is invoked and with adequate and relevant
materials, the trial court will pass such orders as are permissible
in law. Therefore, it is not necessary to take any action much less
in the nature of criminal contempt.
25. While we dispose of this application, we equally deprecate
the tendency of the applicants before us to make allegations
against high dignitaries, including the Prime Minister of India,
Home Minister of India, Chief Minister of Maharashtra, the Chief
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Secretary of the State etc. The applicants must understand and
appreciate that irrespective of the incumbents in office and
holding these posts, the dignity and status of the posts themselves
needs to be safeguarded and protected. In a democratic set up
and when the representatives are elected by people themselves,
then, if parties like the applicants have grievances against the
style of functioning of the Government or any officials thereof or
the holders of these posts, they have to take recourse to law.
They must not, merely because of their right to approach a court
of law to seek redressal of their grievances, indulge in targeting
high dignitaries by naming them as contemnors or guilty of any
crime. Eventually, the applicants must realise that the order of
this court directs certain public officers to be proceeded against in
criminal law. It is a direction to a particular official in-charge of a
police station. There is no direction to the Prime Minister, Chief
Minister etc. It is unfortunate, to say the least, that resort to such
a course taken that defeats the applicant no. 1's position as
freedom fighter and responsible citizens. They should not
undermine the prestige and reputation of these posts.
Eventually, some of the posts are a creature of the Constitution of
India. These offices, therefore, have constitutional status. The
criticism of the incumbents in office in a democratic set up and
that too by casting aspersions and attributing political motives to
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them does not necessarily mean that this court must take any
note of the same. The applicants cannot utilize the forum of the
highest court in the State to level allegations against all and
everybody by seeking to implead or otherwise involving them in
legal proceedings. We, therefore, take no cognizance of the
allegations against these high dignitaries.
26. It is high time that the applicants realize that there is a
definite place for sobriety and restraint in court proceedings. The
demeanour of the applicants and other litigants ought to be such
that they only highlight the injustice caused to them by
presenting all the facts and substantiating the allegations by oral
submissions backed by the contents of relevant documents. The
applicants must realize that the courts are meant to protect
fundamental and legal rights. The courts dispense justice only in
accordance with law. It is not necessary that each and every
allegation and leveled by parties like the applicants against their
opponents or others, including high dignitaries, must be
entertained and the court must take cognizance thereof. If such
allegations are not projecting a real injustice and caused on
account of a breach or violation of the constitutional and legal
rights, then, the court is not obliged to rule upon them. The
parties like the applicants then must resort to other forums. We
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hope that we have to say nothing more. The applicants and
others must realize that it is the duty of every citizen of this
country to duly abide by the Constitution and respect its ideals
and institutions. The courts are also creatures of the
Constitution. Therefore, due respect and regard for the same is
but a fundamental duty of the citizens of this country. They are
expected to abide by the Constitution. At the same time, they
must realize that there are certain limits on the power of the
courts as well. Therefore, this is not a forum which can remove
all defects and deficiencies in the working of the Government and
police machinery.
27. With the aforesaid observations, both the criminal
applications are dismissed.
(DR. SHALINI PHANSALKAR-JOSHI, J.) (S.C.DHARMADHIKARI, J.)
J.V.Salunke,PA
