Bombay High Court
Shaymsunder Radhyeshyam Agarwal vs State Of Maharashtra And Ors on 23 January, 2024
Author: A.S. Chandurkar
Bench: A.S. Chandurkar
crwp-10-2024.doc
BDP-SPS-
BHARAT
DASHARATH
PANDIT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
BHARAT
DASHARATH
PANDIT
CRIMINAL APPELLATE JURISDICTION
Date: 2024.01.23
18:25:13 +0530
CRIMINAL WRIT PETITION NO. 10 OF 2024
Shri Shyamsunder Radhyeshyam Agarwal .... Petitioner.
V/s
The State of Maharashtra and Others .... Respondents.
WITH
INTERIM APPLICATION (ST) NO. 1461 OF 2024
IN
CRIMINAL WRIT PETITION NO.10 OF 2024
Prashant Bansilal Bamb ..... Applicant/
Orig. Res. No.3
In the matter between
Shri Shyamsunder Radheshyam Agarwal ..... Petitioner.
V/s
The State of Maharashtra & Others ..... Respondents.
WITH
INTERIM APPLICATION (ST) NO. 548 OF 2024
IN
CRIMINAL WRIT PETITION NO.10 OF 2024
Sanjay Mishrimal Punamiya .... Applicant
V/s
Shyamsunder Radheshyam Agarwal & Anr. ..... Respondents.
-----
Mr. Anil C. Singh, Sr. Adv. a/w Mr. Sandesh S. Patil a/w Mr. Pawan
Patil, Mr. Chintan Shah, Mr. Prithviraj Gole, Ms. Divya Pawar, Mr. Yash
Gawade, Mr. Shubhankar Kulkarni & Mr. Adarsh Vyas for the Petitioner
in Criminal Writ Petition No.10 of 2024.
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crwp-10-2024.doc
Mr. A.V. Anturkar, Sr. Adv. a/w Mr. Ajay Patil, APP for Respondent No.1-
State.
Mr. Rizwan Merchant a/w Mr. Dilip Shukla, Mr. Jay Zaveri & Ms. Anjali
i/b Crawford & Bailey for Respondent No.2 in Criminal Writ Petition
No.10 of 2024 and for the Applicant in Interim Application No.548 of
2024.
Mr. Kevic Setalwad, Sr. Adv. a/w Mr. Jehan Lalkaka i/b Mr. Ishwar S.
Charlewar for Respondent No.3 in the Criminal Writ Petition No.10 of
2024 and for the Applicant in Interim Application No.1461 of 2024.
---
CORAM: A.S. CHANDURKAR &
JITENDRA JAIN, JJ.
DATE: 23rd JANUARY, 2024
P.C.:-
1] In this Writ Petition filed under Article 226 of the Constitution of
India read with Section 482 of the Code of Criminal Procedure, 1973,
challenge has been raised to the communication dated 21/09/2023
that has been issued by the Deputy Secretary, Home Department of the
State Government as addressed to the Director General of Police,
Maharashtra State, Mumbai, directing constitution of Special
Investigation Team -SIT for impartially inquiring into the offences
registered against the Petitioner. A further direction has been issued
that report of the SIT be submitted within a period of three months.
crwp-10-2024.doc
2] An objection to the maintainability of the Writ Petition has been
raised particularly on behalf of Respondent Nos. 2 and 3. Shri Rizwan
Merchant, learned Counsel appearing for Respondent No.2 submitted
that challenge to the communication dated 21/09/2023 was not
permissible in view of the provisions of Article 194(2) of the
Constitution of India. According to him, as a consequence of the
calling attention motion made by Respondent No.3 who is a member
of the Legislative Assembly on the floor of the Assembly, the issue was
discussed and in view of such discussion, a decision to form a SIT was
taken by the Hon'ble Home Minister. The learned Counsel referred to
the proceedings that took place in the Legislative Assembly on
28/07/2023 and submitted that in view of the provisions of Article
194(2), it was not permissible for this Court to go into the legality of
the decision taken pursuant to deliberations in the Legislative Assembly.
It was further submitted by referring to the prayers made by the
Petitioner in Criminal Writ Petition No.1347 of 2023 (Shyamsundar
Radhyesham Agarwal vs. The State of Maharashtra & Ors.) that while
prayer clause (b) therein came to be withdrawn as per the order dated
30/10/2023 passed in the said Writ Petition, prayer clause (f) therein
sought appointment of a SIT. By issuance of communication dated
crwp-10-2024.doc
21/09/2023 this prayer stood granted and therefore the present Writ
Petition seeking to raise a challenge to the appointment of the SIT was
not maintainable. It was also urged that in the earlier proceedings
including Criminal Writ Petition No.1347 of 2023 the issue with regard
to "cash for query" was not raised though such ground was available to
the Petitioner. The same was sought to be raised as an afterthought in
the present Writ Petition and hence the Petitioner was not entitled to
pursue this ground for the first time in this Writ Petition. On this
count, it was submitted that the present Writ Petition was not
maintainable and hence it should not be entertained.
3] The aforesaid objection to the maintainability of the Criminal
Writ Petition was supported by Shri Kevic Setalwad, learned Senior
Advocate for Respondent No.3. In addition, learned Senior Advocate
referred to averments in paragraphs-xv and xvi in that regard.
Referring to the judgment of the Hon'ble Supreme Court in 1970 (2)
SCC 275 (Satyanarain Prasad vs. State of Bihar) as well as the
provisions of Rule 105(1) of the Maharashtra Legislative Assembly
Rules, it was submitted that since the impugned communication dated
21/09/2023 has been issued in the light of discussion that had taken
crwp-10-2024.doc
place in the Legislative Assembly, the bar under Article 194(2) of the
Constitution of India was attracted and this Court was precluded from
determining the correctness and validity of the said communication.
He also referred to the decision in AIR 1960 SC 1186 ( Pandit M.S.M
Sharma vs. Dr. Shree Krishna Sinha and Others ) and 2021(4) Mh.L.J.
218 (Gopichand Kundalik Padalkar vs. State of Maharashtra and
Others). He too submitted that Writ Petition in its present form was
not maintainable.
Shri A.V. Anturkar, the learned Senior Advocate for Respondent
No.1 supported the stand taken by Respondent Nos. 2 and 3 as regards
objection to the maintainability of the Writ Petition.
4] Shri Anil Singh, learned Senior Advocate appearing for the
Petitioner on the other hand submitted that the Writ Petition raising
challenge to the communication dated 21/09/2023 was maintainable
and the bar under Article 194(2) of the Constitution of India was not at
all attracted. Referring to the prayers made in the Writ Petition as well
Article 194(2), Rules 105 and 107 read with Rule 34(2) of the said
Rules, it was submitted that the communication dated 21/09/2023
crwp-10-2024.doc
having been issued by the Home Department, a challenge to the same
was maintainable. The Petitioner was not challenging the proceedings
that had taken place in the Legislative Assembly and no grounds to that
effect were raised. The Petitioner was only challenging the legality and
validity of the decision of the State Government to constitute a SIT in
the matter. On this count, decisions relied upon by the learned Counsel
for Respondent No.3 were not applicable to the case in hand. As
regards other grounds of objection, the learned Senior Advocate
submitted that the objection raised in that regard was unfounded and
the same would not preclude the Court from adjudicating the Writ
Petition on merits. It was therefore submitted that Writ Petition ought
to be entertained on merits.
5] Having heard the learned Counsel for the parties on the issue of
maintainability of the Writ Petition, it may be stated that the aspect of
maintainability of the proceedings and entertainability of such
proceedings are two different aspects. While the aspect of
maintainability touches the jurisdiction of the Court to consider the
proceedings itself for lack of jurisdiction, the aspect of entertainability
revolves upon the entitlement of a party to relief sought in the
crwp-10-2024.doc
proceedings. This aspect has been highlighted by the Hon'ble Supreme
Court in its decision in Godrej Sara Lee vs Excise and Taxation-cum-
Assessing Authority & Others (2023) 109 GSTR 402. In the light of law
laid down in the aforesaid decision, the objection to the maintainability
of the Writ Petition can be considered.
6] The preliminary objection raised to the maintainability of the
Writ Petition is based on the provisions of Article 194(2) of the
Constitution of India. A perusal of the said provision indicates that no
member of the Legislative Assembly is liable for anything said or vote
given in the Assembly or any Committee thereon. The word "anything"
has been interpreted to be of widest import and has been held to be
equivalent to "everything" - Tej Kiran Jain and others (supra).
Similarly in Pandit M.S.M. Sharma (supra), it has been held that
validity of proceedings inside the Legislature of State cannot be called
in question on the allegation that procedure laid down by law had not
been strictly followed. On perusal of the grounds raised in the Writ
Petition as well as the reliefs sought, it becomes clear that the Petitioner
seeks to challenge the legality and validity of the decision of the Home
Department to constitute a SIT to investigate into crimes registered
crwp-10-2024.doc
against the Petitioner. There is no challenge whatsoever to the
proceedings held in the Legislative Assembly nor is any such relief
sought against any member of the Legislative Assembly, especially
Respondent No.3. That the impugned communication is a fallout of
the discussion that took place in the Legislative Assembly would not in
the present case attract the bar under Article 194(2) of the Constitution
of India. To reiterate, the challenge is restricted only to the legality of
the decision of the Home Department to constitute a SIT. In the
absence of any challenge to any proceedings in the Legislative
Assembly, the bar under Article 194(2) of the Constitution of India is
not attracted. We therefore do not find that the Writ Petition raising
challenge to the communication dated 21/09/2023 constituting a SIT
is not maintainable. It is accordingly held that Writ Petition is
maintainable.
7] Coming to the other objections raised on behalf of Respondent
No.2 based on the reliefs sought in the Criminal Writ Petition No.1347
of 2023, we find that the same pertain to the entertainability of the
present Criminal Writ Petition. At this stage, we have not gone into this
aspect as to whether the reliefs sought in the present proceedings
crwp-10-2024.doc
deserve to be granted or not to the Petitioner. In our view, objection to
entertainability of the Criminal Writ Petition is an objection that could
be raised on merits as a factor for declining grant of the reliefs sought
by the Petitioner. The objection to the entertainability of the Criminal
Writ Petition is thus kept open for being raised on merits when the
Court proceeds to consider the entitlement of the Petitioner to the
reliefs sought in the present Writ Petition.
8] Accordingly, while holding the Writ Petition to be maintainable, it
is clarified that all objections to its entertainability are kept open for
being considered when prayers in the Writ Petition are pressed. Put up
on 29/01/2024 for admission.
9] In view of above, both the Interim Applications are disposed of.
[ JITENDRA JAIN, J. ] [ A.S. CHANDURKAR, J.]
