Bombay High Court
Dashrath Narayan Tandale vs Shridhar Keshavacharya ... on 19 January, 2021
Bench: T.V. Nalawade, M. G. Sewlikar
Cri. Appln. No.2383/2020
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
946 CRIMINAL APPLICATION NO.2383 OF 2020
IN
CRIMINAL APPLICATION NO.1404 OF 2020
DASHRATH NARAYAN TANDALE
VERSUS
SHRIDHAR KESHAVACHARYA PATWARDHAN AND OTHERS
...
Advocate for Applicants : Mr. V.D. Salunke
...
CORAM : T.V. NALAWADE AND
M.G. SEWLIKAR, JJ.
DATED : 15/01/2021 & 19/01/2021.
ORDER : 19/01/2021 For corrected order.
ORDER : [PER T.V. NALAWADE, J.]
1. Present proceeding is fled for recalling the judgment and
order dated 4.12.2020 passed by this Court in Criminal Application
No. 1404/2020. Request is made to restore the matter for hearing of
both the sides and for fresh decision.
2. As the present proceeding was fled for virtually review of
the previous decision, though on peculiar ground, this Court did not
issue notice to other side and by order dated 11.1.2021 after hearing
the learned counsel for applicant for some time, this Court passed
the following order :-
"Mr. Salunke, learned counsel for the applicant is
expected to argue the main matter on merit. This
Court expressed that the ofce committed mistake by
not showing his name on the Board and this Court
Cri. Appln. No.2383/2020
acted on the basis of ofce note, which was apparently
wrong.
2. Stand over to 15-01-2021. Mr. Salunke, learned
counsel is expected to point out his grievance against
ofce during his argument in the matter on merits.t
Thus, the matter was kept for giving hearing to the learned counsel
for applicant as mentioned above. This Court wanted to give
opportunity to counsel of present applicant who is informant in
C.R.No. 251/2020 registered with Parli City Police Station, District
Beed for the ofences punishable under sections 420, 406 and 34 of
Indian Penal Code. As such order was passed and on 15.1.2021, the
advocate for informant was expected to show to the Court that due
to the mistake of staf of the Court, he did not remain present and
there are some grounds in the main matter and for recalling decision
and so, the proceeding fled against informant for quashing of F.I.R.
needs to be reheard. On 15.1.2021 instead of arguing the matter,
the advocate for the informant produced on record one
communication dated 14.1.2021 allegedly made by informant
Dashrath Tandale. Along with this, he produced a photocopy of
photograph of one foot showing that the foot was in bandage. He
submitted that his client was indoor patient and so, adjournment
may be given. He did not, however, submit that he wanted to
withdraw from the proceeding.
Cri. Appln. No.2383/2020
3. The learned counsel Shri. Salunke made other
submissions which are quoted in the order dated 15.1.2021 and the
Court had expressed that if he was not intending to argue the
matter, there was no question of giving any relief to him. But, on
15.1.2021 following order came to be dictated :-
"IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 2383 OF 2020
IN
CRIMINAL APPLICATION NO. 1404 OF 2020
DASHRATH S/o Narayan Tandale ... Applicant
Versus
Shridhar Keshavcharya Patwardhan
and Others .. Respondents
...
Advocate for the Applicant : Mr. V. D. Salunke
A.P.P for Respondent- State : Mr. G. O. Wattamwar
....
CORAM :T.V. NALAWADE AND
M. G. SEWLIKAR,JJ.
DATE : 15.01.2021.
PER COURT :-
. Learned counsel for the applicant Shri. V.
D. Salunke, produced on record the communication of
Dashrath Narayan Tandale dated 14.01.2021. It shows
that his client informed him that he should not argue
the matter. It appears that he has produced on record
one photograph showing Bandge to his leg. Thus,
photograph does not show that he is admitted in the
hospital. Learned counsel Shri. V.D. Salunke today
submitted that the client has undergone minor
operation and he is admitted in the hospital. There is
no record of such admission. There are peculiar
Cri. Appln. No.2383/2020
circumstances in the present matter which this Court
will be quoting in the detail reasoned order. The
learned counsel Shri. V.D. Salunke submitted that he is
unable to argue the matter as there is no afdavit of
his client in reply. He submitted there is one more
circumstance that one application was given by the
original applicant for permission to produce the
documents and those documents are also not with him
and so he is unable to argue. Thus, on one hand his
client has asked him not to argue the matter and on
the other hand learned counsel Shri. V.D. Salunke is
making submissions of aforesaid nature.
2. On 11.01.2021, in view of the grievance raised
by the applicant in Criminal Application No. 2383 of
2020 this Court had made order as follows :-
''Mr. Salunke, learned counsel for the applicant is
expected to argue the main matter on merit. This
Court expressed that the ofce committed
mistake by not showing his name on the Board
and this Court acted on the basis of ofce note,
which was apparently wrong.
Stand over to 15.01.2021. Mr. Salunke,
learned counsel is expected to point out his
grievance against ofce during his argument in
the matter on merit. ''
3. This Court had expressed that Advocate Mr.
Salunke can go with the presumption that the main
matter is restored and that is why he is expected to
argue on main matter on merits. To give him
opportunity to make preparation for argument in the
Cri. Appln. No.2383/2020
matter on merit, order of aforesaid nature was made
but the submissions of aforesaid nature are made. As
the learned counsel Shri. V.D. Salunke is not ready to
argue the matter even when Court asked and give
aforesaid reason, this Court is deciding present matter
on merits and reasons will be given in respect of the
circumstance about which grievance is raised and also
on the merits of the main matter. This Court is
dismissing the main matter again on merit.
4. The application No. 2383 of 2020 fled for
restoration is allowed by considering the probability
that there is some substance in the contention made in
the application. However, all the circumstances in
respect of grievance will be mentioned in reasoned
order. So, the main matter is again dismissed and the
Criminal Application No. 2383 stands allowed.
5. Reasons to follow.t
4. The order dated 15.1.2021 shows that in the order not
only appearance of Advocate Shri. V.D. Salunke is shown, but
appearance of Shri. G.O. Wattamwar learned APP for respondent
State is also shown. This is how the ofce commits mistake. When
notice was not issued to the respondents of the Criminal Application
No. 2383/2020 ofce ought not to have shown the appearance of
counsels of other sides on docket and also on the order. It appears
that the same mistake was committed when order was made on
11.1.2021 and appearance of A.P.P. Shri. A.S. Shinde is shown when
Cri. Appln. No.2383/2020
no order was made even against the State.
5. On 15.1.2021 there was exchange of words between the
Court and learned counsel Shri. V.D. Salunke and it appears that due
to oversight instead of dismissing the review application as it could
have been dismissed due to non prosecution and when the main
matter need not have been touched, the aforesaid order came to be
dictated. Accordingly, the order was also typed. At the time of
checking of the order, the Court realised that there was a mistake
due to oversight and instead of dismissing the proceeding of the
informant present applicant, the main proceeding fled for quashing
of F.I.R. was ordered to be dismissed. The order dated 15.1.2021 was
not signed by both the judges of this Court. During dictation of the
reasons, which were to be dictated as mentioned in order dated
15.1.2021 this Court felt it necessary to correct order dictated and so
to mention the order and so the aforesaid order is mentioned. In
view of nature of submission made and as matter was not argued,
the Court could not have dismissed the matter which was fled for
quashing as it was already allowed. The words used like 'again' show
that the Court due to oversight thought and in hurry that the
previous matter was fled for other relief and it was initially
dismissed when it was actually allowed. Such dismissal of application
by changing judgment also could not have been done behind the
back of original applicant of proceeding No. 1404/2020 and further,
no notice was given to original applicant of review proceeding. A
Cri. Appln. No.2383/2020
modus operandi is developed and this Court has noticed that in some
cases by fling such review/recalling order proceedings, matters are
kept pending for many years when there are no merits in the
matters. There are also circulated directions of Hon'ble Supreme
Court to see that such review applications are not kept pending for
longer time and that is why no notice was issued of the application
fled for recalling the order. Due to oversight only, the aforesaid
mistake is committed by the Court, but that order which was dictated
as operative order in open Court was not signed. Thus, the correction
can be made and it is the duty of Court to make the correction.
Sections 353 and 482 of Cr.P.C. need to be seen in this regard.
6. This Court is correcting the aforesaid mistake as the
mistake was committed due to oversight. Let us see other
circumstances. Advocate Shri. V.D. Salunke did not argue at all on
merits of the main matter and also on the circumstances mentioned
in the Criminal Application No. 2383/2020 like mismanagement of
criminal department of not mentioning his name on the record. This
point needs to be addressed frst. The record of Criminal Application
No. 1404/2020 shows that the frst order of notice was made on
18.4.2020 and on that day, order of notice was made against
respondent Nos. 1, 2 and 3. The said order passed by other Court is
as under :-
"Issue notice to the respondents, returnable on
Cri. Appln. No.2383/2020
18th September 2020. the learned A.P.P. waives service
of notice on behalf of respondent Nos. 1, 2 and 3.t
7. The matter came before regular Court, this Court, on
19.9.2020 and following order came to be passed :-
". Report is awaited of service of regular process.
Keep on 30th September, 2020.t
2 Pendency of these matters do not amount to
interim relief of any nature.t
Thus, as per the record, the report in respect of service of regular
process was shown as awaited and so, on that date matter was
adjourned to 30.9.2020. On 30.9.2020 this Court passed order as
under :-
"1. Issue notice to respondent No. 4 returnable after
four weeks. Private notice and R.P.A.D. is allowed.
2. Hamdast allowed.
3. Detail address or new address of the concerned
respondent can be given by the applicants.
4. Pendency of this matter does not amount of
interim relief of any nature.t
Thus, frst time on 30.9.2020 order was made against informant
which was made returnable as mentioned in this order. Then the
matter came up before this Court on 4.11.2020. On that day, on
board, it was shown that service of notice was efected on informant.
On that day, on the dockets, fles of both the judges, appearance of
Cri. Appln. No.2383/2020
Shri. V.D. Salunke was not shown and on board also his name was
not shown. As there was service of regular process, this Court passed
order to appoint one counsel to represent respondent No. 4 and that
order dated 4.11.2020 is as under :-
"Learned counsel Smt. Pratibha Bharad is
appointed to represent respondent No. 4 as nobody is
appearing for respondent No.4. Copies of papers are to
be supplied to her. The matter will be heard on 4 th
December 2020.t
8. Ordinarily, this Court gives longer time even after
appointing counsel as amicus curie to represent respondent as there
is always possibility of appearance of the informant during that time.
The decision dated 4.12.2020 shows that both the sides were heard
and Criminal Application No. 1404/2020 which was fled for quashing
was allowed. Criminal Application No. 1606/2020 was fled in the
proceeding of Criminal Application No. 1404/2020 by the applicant
on 16.9.2020 for permission to produce some documents and that
application was also disposed of by this judgment. Copy of order
passed by Sessions Court for granting anticipatory bail in favour of
applicants of proceeding bearing Criminal Application No.1404/2020
was produced along with this application. It appears that the
operative order was dictated on 4.12.2020 when Criminal Application
No.1404/2020 was allowed and in that matter, one advocate Shri.
V.T. Patil was shown as present as advocate holding for Advocate
Cri. Appln. No.2383/2020
Shri. V.D. Salunke. Advocate Smt. Pratibha Bharad was also shown as
present as appointed counsel. Only Advocate Smt. Bharad argued for
informant. In spite of this circumstance, Advocate Shri. Salunke
submitted that nobody was present on that day for him and matter
was heard behind his back. This Court has seen the ofce record,
including of computer section. The record shows that Advocate Shri.
V.D. Salunke had fled appearance on 9.10.2020. Though appearance
was fled on 9.10.2020, on 4.11.2020 when the matter had come
before this Court, the appearance of Shri. V.D. Salunke was not
shown on board and it was not there on the docket also. Due to this
circumstance, Advocate Smt. Pratibha Bharad was appointed. If he
had fled appearance on 9.10.2020, he ought to have noted the due
date which was 4.11.2020. But it is his contention that he would
have remained present only if his name was shown on board. This
submission can not be accepted and it is the duty of the advocate to
note the due date and remain present before the Court on due date.
Almost all advocates note the numbers of their matters and when
the matter ought to have been taken on board and when it is not
taken on board, they mention the matter and request the Court to
take the matter on board. Court also takes such matter on board
when due matter is not shown on board. Thus, the roznama order
dated 4.11.2020 shows that on 4.11.2020 nobody remained present
for informant even when Vakalatnama was fled on 9.10.2020. It is
already mentioned that on the date of decision i.e. on 4.12.2020, the
Cri. Appln. No.2383/2020
presency of Advocate Shri. V.T. Patil was shown as advocate holding
for Advocate Shri. V.D. Salunke, but he in review application insisted
to allow him to argue Criminal Appliction No. 1404/2020. When there
is advocate appointed by party and there is also advocate appointed
by Court, by practice, this Court allows both the advocates to argue
for that party. Advocate Shri. Patil holding for Shri. Salunke did not
argue. If Shri. V.D. Salunke had not argued the matter on that day, it
can be said that he had avoided to argue the matter on that day.
Shri. V.T. Patil was present in the Court hall and he was holding for
Shri. V.D. Salunke and accordingly, his name was written on docket
and also in operative order which was dictated in open Court on
4.12.2020. The decision dated 4.12.2020 explains everything and it
shows that the advocate of informant wanted to protract decision.
9. Though there are aforesaid circumstances, in present
matter Criminal Application No.2383/2020 this Court on the frst day
expressed that Court was ready to give hearing to Shri. Salunke if his
client was not happy with him and he needs to argue merits of
Criminal Application No. 1404/2020. He avoided to argue the matter
and he did not advance arguments even in respect of the grievance
against the ofce which is mentioned in the petition. Then with the
presumption that the Court is passing the order against the client of
Shri. V.D. Salunke, aforesaid order came to be dictated on 15.1.2021.
It is clear that due to oversight the main proceeding bearing Criminal
Cri. Appln. No.2383/2020
Application No. 1404/2020 is shown as dismissed, when it could not
have been dismissed and there was no question of touching the
decision of that matter. The word 'again' used shows that this Court
wanted to keep the decision as it is. The order shows that there was
no rule and rule was not made absolute. This order was dictated in
open Court and when Shri. V.D. Salunke was present in the Court
hall. When he was knowing that Court is committing mistake in
dictating operative order, he did not even mention that the Court is
committing mistake. The other side was not present and so, there
was no question of pointing out the mistake by other side and other
side was not noticed. These circumstances show that the days have
gone when Courts used to act on the words of the advocates. Now
the Courts need to be very cautious as the things have changed and
circumstances like above are created. This Court is making it clear
that this Court had no intention to change the decision of Criminal
Application No. 1404/2020. It could not have been done on merits. To
show the reasons for previous decision of application No. 1404/2020,
this Court is quoting the entire decision which is as under :-
"IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1404 OF 2020
WITH
CRIMINAL APPLICATION NO. 1606 OF 2020
IN
CRIMINAL APPLICATION NO. 1404 OF 2020
1. Shridhar Keshavacharya Patwardhan,
Aged 78 years, Occu. Nil,
R/o. Parali Vaijnath, Dist. Beed,
Cri. Appln. No.2383/2020
Now at Flat No. 203, Purva Apartments,
Nakshatrangan, Hindustan Awas,
Paithan Road, Aurangabad.
2. Dr. Raghvendra Shridharrao Patwardhan,
Aged 35 years, Occu. Govt. Service,
R/o. At Flat No. 203, Purva Apartments,
Nakshatrangan, Hindustan Awas,
Paithan Road, Aurangabad,
Now at Flat No. 404, Kumkum Corner,
Plot No. 1B, Sector-26, Navi Mumbai.
3. Jaishree Shridhar Patwardhan,
Aged 73 years, Occu. Nil,
R/o. Parali Vaijnath, Dist. Beed,
Now at Flat No. 203, Purva Apartments,
Nakshatrangan, Hindustan Awas,
Paithan Road, Aurangabad.
Tq. Kaij, Dist. Beed .. APPLICANTS
(Original Accused)
VERSUS
1. The State of Maharashtra,
Through the Superintendent of Police,
Beed, District Beed.
2. The Sub-Divisional Police Ofcer,
Sub-Division Ambajogai,
District Beed.
3. The Police Inspector,
Parali City Police Station,
Tq. Parali Vaijnath,
Dist. Beed.
4. Dashrath S/o. Narayan Tandale,
Aged Major, Occu. Business,
R/o. Saradgaon, Tq. Parali -
Vaijnath, Dist. Beed, now at
Padmavati Galli, Parali Vaijnath,
District Beed. .. RESPONDENTS
...
Mr. B. G. Sagade, Advocate for Applicants
Mr. A. V. Deshmukh, APP for Respondents No. 1 to 3 - State.
Mr. V. T. Patil, Adv. h/f. Mr. V. D. Salunke, Advocate for Respondent
No.4
Mrs. Pratibha Bharad, Advocate for Respondent No.4 (Appointed).
...
CORAM : T. V. NALAWADE AND
M.G. SEWLIKAR, JJ.
DATE : 4th DECEMBER, 2020
Cri. Appln. No.2383/2020
ORAL JUDGMENT : ( PER : T.V. NALAWADE, J.)
Rule. Rule made returnable forthwith. By consent heard
learned counsels for both the sides for fnal disposal.
2. First proceeding is fled for relief of quashing First
Information Report (FIR) bearing Crime No. 251 of 2020
registered with Parali City Police Station, District Beed, for the
ofences punishable under Sections 420 and 406 read with
Section 34 of the Indian Penal Code (IPC). Second proceeding is
fled by same applicants for relief like permission to produce
some documents for consideration in the main matter and that
document is copy of order made in Anticipatory Bail Application
passed by learned Additional Sessions Judge, Ambajogai.
3. The crime is registered on the basis of report given by
respondent No. 4 Dashrath Narayan Tandale. He has made
allegation against the present applicants that after making
agreement of sale of land Survey No.499/2 situated at Parli-
Vaijnath and accepting earnest money of Rupees One Lakh, the
applicants did not execute sale deed in his favour and they sold
the land to third party on 06-01-2019. It is contended that the
agreement was made in his favour on 03-07-2014 and the
agreed consideration was Rupees Forty Lakh.
4. The submissions made and record show that when frst
report was given to Police, some inquiry was made by Parali City
Police Station and it was informed to the complainant that the
dispute of the informant with the applicants is of civil nature, so
it was not possible to register the crime. It was also informed
that the disputed agreement was executed six years prior to the
date of report and when applicants No.2 and 3 namely Mr.
Raghvendra Shridhar Patwardhan and Sau Jayshree Shridhar
Patwardhan had no concern with the agreement, unnecessarily
Cri. Appln. No.2383/2020
allegations were also made against them. The disputed
agreement was made with applicant No.1 - Shridhar. It appears
that even when such communication was made by concerned
Police Station, the Sub-Divisional Police Ofcer, Ambajogai
directed the Police of Parali City Police Station to register the
crime for the ofences punishable under Sections 420 and 406 of
IPC on 13-08-2020 and then this crime came to be registered.
5. The submissions made and record further show that
applicant No.1 Shridhar gave complaint to Parali City Police
Station on 07-07-2020 that he was deceived by present
complainant and by deceiving him his signatures were obtained
on stamp paper. It is the contention that no amount was given
to him and there was no consideration for this document. It is
the contention that none of his relative was present when
document was prepared and by misusing the circumstances that
he is old person and he has some ailment, such document was
prepared by the complainant.
6. When there is agreement of sale, no propriety interest is
created by agreement in favour of promisee. The circumstance
that the agreement was made in the year 2014 and till the year
2020 no steps were taken shows that the complainant was not
serious for enforcement of agreement. The sale deed was made
in favour of third party on 06-01-2019. This Court has carefully
gone through the contents of agreement and allegations made
by both the sides against each others. Even if, the allegations of
applicant No. 1-Shridhar are ignored, it can be said that no steps
were taken by the present complainant to enforce his right if he
had some right under aforesaid disputed agreement. If it is
presumed that applicant No.1 Shridhar committed breach of
contract, that circumstance cannot be used against his relatives,
applicants No. 2 and 3, and criminal action cannot be taken even
against applicant No.1 Shridhar. At the frst instance concerned
Police Station had considered these circumstances and it was
Cri. Appln. No.2383/2020
informed to the complainant that it is civil dispute. It is
surprising that Sub-Divisional Police Ofcer subsequently
directed the Police of Parali City Police Station to register the
crime, when there were aforesaid circumstances. In view of the
position of law if the police are allowed to investigate the matter
and take coercive action against applicants, it will be abuse of
process of law.
7. In the present matter, initially as nobody had appeared for
the informant, one Advocate Smt. Pratibha Bharad was
appointed to represent him. Then, Mr. V. D. Salunke, learned
counsel caused his appearance on behalf of respondent No. 4-
informant. The matter was kept for hearing today. When the
matter was taken up for hearing, learned counsel Mr. V. T. Patil,
who was holding for Mr. Salunke, did not make any submission
and when Court expressed view, he submitted that Mr. V. D.
Salunke, learned counsel is not available. Thus, after hearing
learned counsel for the applicant, when this Court expressed that
it is apparent misuse of process of law, Advocate Mr. Patil,
started asking for adjournment and wanted to protract the
decision. Earlier Advocate, who was appointed for representing
respondent No. 4-informant was available, so opportunity was
given to her for making submissions. In the result, following
order.
ORDER
I. The Application is allowed. Relief is granted in terms of
prayer clause (B).
II. Criminal Application No. 1606/2020 stands disposed of.
III. Rule made absolute in those terms.
IV. Fees of the learned appointed counsel is quantifed as
Rs. 4000/- (Rupees Four Thousand only) and it is to be
paid through the High Court Legal Services, Sub-
Cri. Appln. No.2383/2020
Committee, Aurangabad.t
10. When there is such decision, allowing proceeding fled for
quashing of F.I.R., the application fled for review/recalling the
decision can be allowed only in exceptional circumstances like there
is error apparent and the decision is given without considering
relevant material. There was no such circumstance. So, it was
necessary to argue Criminal Application No.2383/2020 to make out
prima facie case for that purpose, for admission. No such argument
was advanced. The communication of informant dated 15.1.2021
shows that he had requested Shri. Salunke to see that matter
bearing Criminal Application No. 1404/2020 is restored only. The
informant had written that for arguing Criminal Application No.
1404/2020 he wanted to appoint other advocate. In view of nature of
proceeding No.2383/2020 such splitting of the matter was not
possible as application like Criminal Application No. 2383/2020 can
be dismissed if there are no merits in the application. This
circumstance shows that motive behind it was ulterior and they were
tactics to protract the decision on the application.
11. This Court wanted to avoid the protracting the matter
and only with that purpose, aforesaid order came to be passed. The
decision of Criminal Application No. 1404/2020 shows that the civil
remedy was apparently time barred and only to get something by
Cri. Appln. No.2383/2020
using police machinery report was given to police. Due to all these
circumstances, heavy costs can be imposed in Criminal Application
No. 2383/2020, but considering possibility that informant is
misguided, this Court is not imposing costs.
12. In view of these circumstances and section 362 of Cr.P.C.
this Court holds that the application fled for review needs to be
dismissed and so, it is dismissed. Correction is to be made on the
record of computer as it is uploaded by staf that Criminal
Application No. 2383/2020 is allowed and Criminal Application
No.1404/2020 is shown as dismissed. It is made clear that there is no
change in the decision given of Criminal Application No. 1404/2020
on 4.12.2020.
[ M.G. SEWLIKAR, J.] [T.V. NALAWADE, J.]
It appears that Advocate Shri. V.D. Salunke did not
remain present even when the matter was listed on the board and it
was called at about 10.35 a.m. Today frst time the ofce showed to
this Court the afdavit fled by Advocate Shri. Salunke dated
14.1.2021, the day on which the order which is corrected was
dictated. The contentions are the same and they are already
considered in the corrected order.
[ M.G. SEWLIKAR, J.] [T.V. NALAWADE, J.]
ssc/
