Bombay High Court

Popat Ashok Navale vs State Of Maharashtra And Anr on 25 July, 2023

Bench: S. V. Kotwal

2023:BHC-AS:20982



                                                             1 of 9                         19-WP-2535-2023


                                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CRIMINAL APPELLATE JURISDICTION

                                         CRIMINAL WRIT PETITION NO.2535 OF 2023
                                                         WITH
                                         CRIMINAL WRIT PETITION NO.2536 OF 2023
                        Popat Ashok Navale                                                 ..Petitioner
                                            Versus
                        The State of Maharashtra & Anr                                ..Respondents

                                                      ------------
                        Mr. Vaibhav R. Gaikwad a/w Yash Naik, Advocate, for Petitioner in
                        both Writ Petitions.
                        Ms. M.R. Tidke, APP, for State/Respondent in both Writ Petitions.
                        Ms. Sairuchita Choudhary, Advocate, for Respondent No.2 in both
                        Writ Petitions.
                                                      ------------

          Digitally
          signed by
          ASHWINI
                                                      CORAM : SARANG V. KOTWAL, J.

ASHWINI JANARDAN JANARDAN VALLAKATI VALLAKATI Date:

DATE : 25th JULY 2023 2023.07.27 04:12:36 +0530 PC :

1. Both these Petitions are decided together by this

common order because of an anomalous situation that has arisen

because of apparently contradictory orders passed by the same

Court of the Additional Session Judge-2, Baramati, District Pune.

In Writ Petition No. 2536 of 2023, the main prayer is for quashing

and setting aside the order dated 15.7.23 passed by the learned

Additional Sessions Judge-2, Baramati, District Pune below Exh.1

in Criminal Review Application No.45 of 2023. In Criminal Writ

Ashwini V

2 of 9 19-WP-2535-2023

Petition No.2535 of 2023 the main prayer is for quashing and

setting aside the order dated 20th June 2023 passed by the learned

Additional Sessions Judge-2, Baramati, District Pune in Criminal

Revision Application No.28 of 2023.

2. The brief background of this case is quite interesting.

The Petitioner had lodged the FIR vide Crime No.147 of 2023 at

Yavat Police Station, Pune Rural on 12th February 2023 under

Sections 406, 420, 504, 506 r/w 34 of the Indian Penal Code. It is

his case in the FIR that he was the owner of a car i.e., Ford

Endeavour bearing No. MH12TN7999. He had purchased that car

by obtaining loan from Axis Bank and he was paying the EMI. It

became difficult for him to pay the EMI and, therefore, he decided

to sell that vehicle. It is his case that the Respondent No.2's

husband Rajendra Pagar showed interest in purchasing that

vehicle. The purchase price was fixed at Rs.38 lakhs; the

Respondent No.2's husband had paid him Rs.5,51,000/- at the first

instance and gave him some cheques. The agreement was

executed on a stamp paper in the name of the Respondent No.2.

After that, there was a dispute about the payment. The car was

Ashwini V

3 of 9 19-WP-2535-2023

given in possession of the Respondent No.2 but the entire payment

was not made and, therefore, this FIR was lodged. During the

investigation, the car was seized.

3. The Petitioner herein made an Application vide Criminal

Miscellaneous Application No.94 of 2023 in the Court of Judicial

Magistrate First Class, Daund, ("JMFC") for return of the vehicle.

4. The Respondent No.2 opposed this Application. It was

her case that she had made payment to the tune of more than

Rs.17 lakhs. According to her, a false FIR was lodged. Therefore,

she opposed the Application made by the Petitioner for return of

the vehicle. She made her own prayer in that reply, asking for

return of the seized vehicle.

5. This Application i.e. Criminal Miscellaneous Application

No.94 of 2023 was decided by the learned JMFC, Daund vide his

order dated 1st April 2023. The Vehicle was directed to be handed

over to the Petitioner herein on the condition of furnishing Bank

guarantee of Rs.40 lakhs.

6. The order of the learned Magistrate was separately

Ashwini V

4 of 9 19-WP-2535-2023

challenged by the Petitioner as well as the Respondent No.2. The

Petitioner filed Criminal Revision Application No.35 of 2023 and

the Respondent No.2 filed Criminal Revision Application No.28 of

2023 before the Additional Sessions Judge-2, Baramati, district

Pune.

7. The confusion started when the learned Additional

Sessions Judge-2, Baramati, district Pune passed two contradictory

orders in both these Revision Applications on 20th June 2023. On

the Revision preferred by the Petitioner herein i.e., in Criminal

Revision Application No.35 of 2023, the learned Judge passed an

order allowing that Revision Application. The condition of

furnishing Bank guarantee was modified and the Petitioner was

asked to furnish Indemnity Bond for the said amount. On that

same date, the learned Judge also decided the Criminal Revision

Application No.28 of 2023, preferred by the Respondent No.2

herein and directed the Police Inspector, Yavat Police Station to

handover the interim custody of the same vehicle to the

Respondent No.2. Thus, the effect of the two orders was that, the

Investigating Officer had to handover the possession of the vehicle

Ashwini V

5 of 9 19-WP-2535-2023

to both the contesting parties.

8. As the events unfolded further, the Investigating Officer

handed over the custody of the vehicle to the Petitioner

immediately after the orders dated 20th June 2023. Further, when

the contradiction was noticed, the Investigating Officer preferred

an Application before the same learned Judge i.e., the Additional

Sessions Judge-2, Baramati, district Pune by way of Criminal

Review Application No.45 of 2023 under Section 362 of Cr.P.C. for

altering the judgment for a clerical mistake. On this occasion, the

learned Additional Sessions Judge-2, Baramati, district Pune

entertained that Review Application and directed the Investigating

Officer to follow the order passed in Criminal Revision Application

No.28 of 2023 with the effect that the Respondent No.2 was to get

that vehicle. The said order was passed on 15th July 2023.

9. Now, the grievance of both the parties is that the

situation has created complications. The learned Counsel for the

Petitioner submitted that the Review Application was not

maintainable and, therefore, the order dated 15th July 2023,

Ashwini V

6 of 9 19-WP-2535-2023

passed in Criminal Review Application No.45 of 2023 is not

sustainable in law. Inspite of that, summons was issued against

him for return of the vehicle. At this stage, the Petitioner has

approached this Court, challenging these apparently contradictory

orders.

10. The grievance of the learned Counsel for the Respondent

No.2 on the other hand is that inspite of the clear direction of the

learned Additional Sessions Judge-2, Baramati, district Pune the

vehicle is still retained by the Petitioner herein and, therefore, she

opposes grant of any relief in both these Writ Petitions.

11. The discussion herein above is self-explanatory. This

confusion is created by the three different orders passed by the

learned Additional Sessions Judge-2, Baramati, district Pune. To

compound the matter further, as submitted by the learned Counsel

for the Respondent No.2, that, when the Criminal Review

Application No.45 of 2023 was decided, none of the parties i.e.,

the Petitioner and the Respondent No.2 herein was heard.

Therefore, in any case, the order in Criminal Review Application

Ashwini V

7 of 9 19-WP-2535-2023

No.45 of 2023 passed by the learned Additional Sessions Judge-2,

Baramati, district Pune will have to be set aside, so that both the

parties get an opportunity to put forth their submissions.

12. Considering this factual situation, the only practical

solution, in my opinion is to set aside all the orders passed by the

learned Additional Sessions Judge-2, Baramati, district Pune and

direct him to decide both the Revision Applications afresh. Apart

from that, there is one more issue, the learned Judge will have to

address, since the Revision Applications were preferred before him.

He is required to consider whether the order passed by the learned

Magistrate is an interlocutory order and, therefore, whether the

Revision Applications were maintainable or not. Till the learned

Additional Sessions Judge decides those Revision Applications,

some protection by way of interim arrangement needs to be made.

As of today, the vehicle is in possession of the Petitioner and,

therefore, this arrangement can be continued till those Revision

Applications are decided by the learned Additional Sessions Judge-

2, Baramati, district Pune.




     Ashwini V





                                            8 of 9                          19-WP-2535-2023

13. Considering the apprehension expressed by the learned

Counsel for the Respondent No.2, the Revision Applications are

required to be decided expeditiously within a time bound manner.

14. Hence, the following order:

ORDER

i) The order passed by the learned Additional

Sessions Judge-2, Baramati, district Pune in

Criminal Revision Application No.28 of 2023, the

order passed in Criminal Revision Application

No.35 of 2023 and the order passed in Criminal

Review Application No.45 of 2023 by the same

learned Additional Sessions Judge-2, Baramati,

district Pune, are all set aside.

ii) The learned Additional Sessions Judge-2,

Baramati, district Pune shall decide Criminal

Revision Application No.35 of 2023 and Criminal

Revision Application No.28 of 2023 afresh in

accordance with law. They shall be decided

Ashwini V

9 of 9 19-WP-2535-2023

together expeditiously and as far as possible

within a period of two months from today.

iii) Till the Revision Applications are decided, status-

quo as far as custody of the vehicle is concerned,

shall be maintained.

iv) The maintainability of both the Revision

Applications is also left open to be decided by the

Additional Sessions Judge-2, Baramati, district

Pune.