Bombay High Court
Dominic S/O Gabriel Philip vs State Of Maharashtra, Thr. The ... on 3 August, 2021
Bench: Manish Pitale
1/5 04-Cr.WP 259.2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL WRIT PETITION NO. 259 OF 2021
( Dominic s/o Gabriel Philip vs. State of Maharashtra and another )
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Office Notes, Office Memorandum of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Dominic Philip, in person.
Mr. S. D. Sirpurkar, APP for respondent No.1.
Mr. U. P. Dable, Advocate for respondent No.2.
CORAM : MANISH PITALE J.
DATED : 03/08/2021
Mr. Philip, the petitioner has appeared in
person. The subject matter of challenge in this writ
petition is an order passed by the Sessions Court on
18/12/2020, whereby a revision application filed by the
petitioner was dismissed and an order dated 11/03/2020
passed by the Court of Judicial Magistrate First Class,
Nagpur stood confirmed.
2. The facts in brief leading to the filing of the
present writ petition are that the petitioner had
instituted a criminal complaint against respondent No.2
for proceeding against him for alleged offence under
Section 125-A of the Representation of People Act, 1951.
It was the case of the petitioner that the respondent No.2
had filed a false affidavit while submitting his
nomination form for contesting election as Corporator of
2/5 04-Cr.WP 259.2021
the Municipal Corporation, Nagpur, in the year 2017. It
was submitted that the false statement in the affidavit
was to the extent that the respondent No.2 did not
divulge pendency of case against him under Section
53(7) of the Maharashtra Regional and Town planning
Act, 1966, wherein cognizance had been taken.
3. The Court of Judicial Magistrate First Class,
by order dated 19/03/2019, dismissed the said
complaint, upon finding that no sufficient ground was
made out for proceeding in the matter. The Magistrate
specifically relied upon judgment of this Court passed in
the case of Devendra Gangadharrao Fadanavis vs.
Satish s/o Mahadeorao Ukey and another (Criminal
Revision Application No.94 of 2016). By judgment and
order dated 03/05/2018, passed in the said Revision
Application, this Court had held that failure to divulge
pendency of such cases would not amount to filing a
false affidavit under Section 125-A of the aforesaid Act.
4. It is an admitted position that the petitioner
did not challenge the aforesaid order dated 19/03/2019
passed by the Court of Magistrate. Thereafter, on
01/10/2019, the Hon'ble Supreme Court passed its
judgment and order in the case of Satish Ukey vs.
Devendra Gangadharrao Fadanavis and anr. (Criminal
Appeal Nos.1515 - 1516 of 2019), reversing the position
of law laid down by this Court. It was held that in the
affidavit to be filed along with nomination form, the
candidate is required to state details of all pending cases,
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wherein cognizance has been taken, even where charges
were yet to be framed by the Court for offences
punishable with imprisonment for few years and more.
5. Thereafter, the petitioner file Criminal Misc.
Application No.80 of 2020, before the Court of Judicial
Magistrate First Class seeking to reopen the complaint
case that was already dismissed by order dated
19/03/2019. The aforesaid Court rejected the
application on the ground that there is no provision in
the Code of Criminal Procedure (CrPC) for reopening of
a case in this manner, which virtually amounted to
seeking a review of earlier order dated 19/03/2019.
6. Aggrieved by the same, the petitioner filed
Criminal Revision Application No.164 of 2020, before the
Sessions Court at Nagpur. By the impugned judgment
and order dated 18/12/2020, the Court of Additional
Sessions Judge, Nagpur, dismissed the Revision
Application, thereby confirming the order dated
11/03/2020, passed by the Magistrate.
7. Mr. Philip, the petitioner appearing in person,
submitted that the Courts below erred in holding against
the petitioner for the reason that when the position of
law clarified by the Hon'ble Supreme Court
demonstrated that the affidavit filed by respondent No.2
could be said to be false and offence under Section 125-A
of the aforesaid Act was prima facie attracted, the case
ought to have been reopened.
4/5 04-Cr.WP 259.2021
8. On the other hand Mr. Dable, learned counsel
appearing for respondent No.2 opposed the prayer made
in the present writ petition on the ground that there is no
provision in the CrPC for reopening a case and virtually
reviewing the earlier order dated 19/03/2019, passed by
the Magistrate
9. Mr. S. D. Sirpurkar, learned APP appearing
on behalf of respondent State also submitted that there is
no provision in the CrPC under which the petitioner
could have approached the Court for reopening of a case
by seeking review of the order dated 19/03/2019.
10. The petitioner appearing in person was
unable to show any provision in the CrPC, which could
enable him to approach the Magistrate again to reopen
the case which stood dismissed by order dated
19/03/2019. It would obviously amount to reviewing
the order dated 19/03/2019. It is an admitted position
that the petitioner did not challenge the order dated
19/03/2019, passed by the Magistrate, whereby the
complaint filed by him had been considered and
dismissed on merits.
11. In the absence of any provision granting
power to the Magistrate to review his own order dated
19/03/2019, no fault can be attributed to the Magistrate
in holding in his order dated 11/03/2020, that the
application filed by the petitioner for reopening the case
was not maintainable.
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12. The Sessions Court in the impugned
judgment and order has also specifically recorded that
when a query was put to the petitioner as to under which
provision he was seeking review of the earlier order
dated 19/03/2019 and reopening of the case before the
Magistrate, there was no answer forthcoming. It is an
admitted position that the only order made subject
matter of challenge before the Sessions Court was the
order dated 11/03/2020, whereby it was held that the
application seeking reopening of the complaint case was
not maintainable.
13. In the absence of any provision in the CrPC
for reviewing earlier order by the Magistrate and for
reopening of the complaint case as sought by the
petitioner, this Court is of the opinion that no error can
be attributed to the impugned orders passed by the
Sessions Court, as well as the Magistrate.
14. In view of the above, the writ petition is
found to be devoid of any merit. Hence, it is dismissed.
No costs.
JUDGE
KOLHE/P.A.
