Allowed

Prerna Valmik Bhilare and Ors. v. the State of Maharashtra

Bombay HC12 Nov 2014APPP/123/2014

Case brief

AI extract

What is this about?

Single judge recalled an order dismissing a criminal application under Section 407 CrPC as it was passed without serving notice to the applicants about the conversion of their communication into a formal criminal application and lack of opportunity to be heard.

What did the court decide?

Order dated 11th July 2013 recorded under Section 407 CrPC recalled; criminal application restored to file for admission on 27th November 2014; delay condoned.

Prerna Valmik Bhilare and Ors. Vs the State of… — Civil Procedure and Limitation | Bombay HC (2014)

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appp-123-14

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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rpa

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CRIMINAL APPLICATION NO.123 OF 2014 IN CRIMINAL APPLICATION NO.68 OF 2013

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Mrs.Prerna Valmik Bhilare & Ors. .. Applicants Vs. The State of Maharashtra .. Respondent

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Mr.Nilesh Bhutekar, Advocate for the Applicants. Ms.S.S. Kaushik, A.P.P. for Respondent – State.

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CORAM : ABHAY M. THIPSAY, J.

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DATED : NOVEMBER 12, 2014.

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P.C. :

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Heard Mr.Bhutekar, the learned counsel for the

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applicants. Heard Ms.Kaushik, the learned A.P.P. for the respondent – State of Maharashtra.

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2 By this application the recall of the order dated 11^th July, 2013, passed by this Court dismissing the criminal application no.68 of 2013 is prayed for. It is also prayed that the delay in filing the application be condoned.

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3 I have gone through the order dated 11^th July, 2013.

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4 It appears that the applicants had made an application on

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the administrative side of this Court for transfer of the case in question to a Court outside Beed district. This communication from the applicants on the administrative side of this Court was placed before the Hon'ble the Chief Justice by the Registry. The Hon'ble the Chief Justice directed the said letter/communication to be treated as a Miscellaneous Criminal Application under Section 407 of the Code of Criminal Procedure. Accordingly, the communication was treated as such, and placed before the appropriate Bench. It appeared on board of 12^th March, 2013, when none of the applicants appeared before the Court. Some directions were given by the Court on 12^th March, 2013, pursuant to which an affidavit of the Superintendent of Police, district Beed came to be filed. The matter appeared on board on 11^th July, 2013, on which date also none of the applicants were present before the Court. The Court then dismissed the application holding that 'the grounds assigned were illusory and untenable in its character'.

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5 It is contended by the learned counsel for the applicants

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that the applicants were not aware at all of the fact that the communication addressed by them to this Court which was expected

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to be dealt with on the administrative side of this Court was converted into a criminal application under Section 407 of the Code of Criminal Procedure. It is submitted that the applicants were, consequently, not aware that the application was placed on board, and therefore could not remain present before the Court to make submissions in support of the application.

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6 The learned A.P.P. submits, rightly, that the order dated 11^th November, 2013, cannot be termed as an order passed in default of appearance of the applicant. She submits that the criminal application No.68 of 2013, came to be dismissed after considering the merits of the matter, though without hearing the applicants.

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7 It is true that an order passed by this Court cannot be recalled merely because it fails to take certain aspects of the matter into consideration. In such cases, the remedy of aggrieved party would be to approach the superior court. However in the instant case, I find that no notice that their communication/letter was directed to be treated as a criminal application and to be placed before appropriate Bench was given to any of the applicants. Once this position cannot be disputed, it will be proper to recall the order dated 11^th July, 2013 and direct the hearing of the criminal application No.68 of 2013 afresh.

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This would be absolutely essential in the interest of justice.

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8 Delay is condoned.

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9 The order dated 13^th July, 2013, is recalled.

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10 The criminal application No.68 of 2013, be restored to file and be placed on board for admission on 27^th November, 2014.

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11 In the meantime, Registrar (Judicial) shall call for a report from the trial Court about the present position of the trial.

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12 Application is allowed in the aforesaid terms.

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(ABHAY M. THIPSAY, J.)

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Prerna Valmik Bhilare and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

Prerna Valmik Bhilare and Ors. v. the State of Maharashtra

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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