Allowed

Gopalan Nayar Tulsidas v. the State of Maharashtra and Ors.

Bombay HC24 Jun 2014WP/1017/2013

Case brief

AI extract

What is this about?

This brief order addresses a Criminal Writ Petition assailing a Sessions Court order that quashed Chapter proceedings. The High Court held the revision order illegal due to the non-issuance of notice to the original complainant, violation of Section 401(2), and potential influence by misleading documents. The Writ Petition was allowed.

What did the court decide?

The order dated 4th January 2013 quashing proceedings under Section 107 CrPC was quashed. The Sessions Court is directed to issue notice to the petitioner and decide the revision application on merits

Gopalan Nayar Tulsidas Vs the State of… — Civil Procedure and Limitation | Bombay HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION

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CRIMINAL WRIT PETITION NO. 1017 OF 2013

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Gopalan Nayar Tulsidas. ... Petitioner. Versus The State of Maharashtra & ors.. ... Respondents. ---

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Mr. Shirish Gupte and Mr. Sanjay Parab i/b. Mr. Vinayak Katti & Mohan Rao, Hrishikesh Ambre & Sulabha Rane, advocate for petitioner.

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None for respondents.

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Mrs. G.P. Mulekar, APP for State.

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CORAM : SMT.SADHANA S. JADHAV,J DATE : JUNE 24, 2014

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P.C.:

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1 Heard the learned Counsel for the Petitioner. None appears for the respondents although served. Learned APP waives service for respondent No. 1.

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2 Rule. Rule made returnable forthwith as short arguable question is involved.

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3 The Petitioner herein assails the correctness and validity of the order dated 4^th January, 2013 passed by the Court of Sessions at Talwalkar 1/7

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Kalyan in Criminal Revision Application No. 128 of 2012, thereby quashing the proceedings against the present respondents in Chapter Case No. 1368 of 2012 as well as said Chapter Case before the Court of Special Executive Magistrate at Kalyan.

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4 The facts in nut shell are as follows :

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The Petitioner is the Manager of National Reyon Corporation Ltd. Land bearing CTS No. 1352 situated at village Galegaon, Taluka Kalyan is owned by the NRC. On 14^th June, 2012 ASI of Kalyan Taluka Police Station had lodged a report against the present respondents, on the basis of which proceedings under Section 107 of the Code of Criminal Procedure, 1973 were initiated. It was alleged in the said complaint that the complainant i.e. the Petitioner herein had purchased CTS No. 7, 8, 9, 10, 17,18, 22, 23, 25, 30, 33, 34, 35, 36 and 37. When the officer of the company had gone for the supervision of the said land, the accused i.e. the present respondents had formed an unlawful assembly and obstructed the vehicle of the officer claiming that the said land belongs to them. The officer was threatened of dire consequences and abused. Hence, he had initiated chapter proceedings against the respondents.

Talwalkar

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5 On 8^th October, 2012 Shri Gopalan Nayar working as the Manager of NRC Company has again lodged a report before the Special Executive Magistrate alleging therein that on 25^th May, 2012 at about 10.30 p.m. the respondents had formed unlawful assembly and had attempted to encroach upon the land of the company. They had informed the security officers that they wanted to conduct a private survey upon the said land and in the eventuality that they were obstructed, the company and the officers would have to face dire consequences. On 22^nd May 2012 at about 1.30 p.m. the respondents and others had again formed an unlawful assembly and attempted to encroach upon the said land. At that time, they were armed with deadly weapons. The security guards had rushed to Titwala Police Station and lodged report on the basis of which Crime No. 83 of 2012 was registered against the miscreants. Similar incident has occurred on 25^th May, 2012. A report was lodged at Titwala Police Station on the basis of which Crime No. 86 of 2012 was registered.

Talwalkar

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6 On 3^rd November, 2012 the Assistant PSI of Kalyan Taluka Police Station had lodged a report on the basis of the said report Chapter proceedings under Section 107 of the Code of Criminal Procedure, 1973 were recommended. The said proceedings were challenged by the respondents before the Court of Sessions at Kalyan by filing Criminal Revision Application No. 128 of 2012.

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7 It is apparent on the face of the record that no notice was issued to the original complainant. Learned Sessions Judge has placed reliance upon the list of documents filed by the applicants therein. Learned Sessions Judge has arrived at a conclusion that when two rival parties were claiming rights over the land, Civil Court will be the appropriate forum for redressal of their grievance. Revisional Court had further arrived at conclusion that there was no breach of public peace and therefore, the accused(present respondents) could not be directed to furnish bond for keeping public peace. Hence, the proceedings initiated under Section 107 of the Code of Criminal Procedure, 1973 were quashed and set aside. Hence, this Writ Petition.

Talwalkar

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8 The respondents herein had filed revision under Section 401 of the Code of Criminal Procedure, 1973. Section 401(2) reads thus :

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“ Section 401(2) in The Code Of Criminal Procedure, 1973

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(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.”

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It is the mandate of section 401(2) that no order shall be made to the prejudice of the accused or other person unless he is heard. In the present case, no notice was issued to the Petitioner who happens to be the original complainant on the basis of which the Chapter proceedings were initiated.

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9 The learned Senior Counsel appearing for the Petitioner had drawn attention of this Court to the list of documents filed by the respondents alongwith the revision application. It is revealed from the list of documents that the applicants in the revision application had filed 7/12 extracts in respect of Gat No. 19/1 and 19/3 whereas the scene of offence in both the cases was CTS No. 1352 situated at village Galegaon. It is therefore, clear that the respondents had misled the Revisional Court by placing on record the 7/12 extracts of the land which was not scene of offence in C.R. No. 83 of 2012 or 86

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Talwalkar 5/7

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of 2012. The Revisional Court has not mentioned the CTS number in the said order. It is true that the Revisional Court has observed that the applicants had not appeared before the Executive Magistrate and therefore, bailable warrants have been issued against the accused persons. In fact, it was not even urged before the Revisional Court that no show cause notice was issued to the accused. In fact, it appears from the record that the proceedings under Section 107 of the Code of Criminal Procedure, 1973 were initiated without there being an order under Section 111 of the Code of Criminal Procedure, 1973. However, the said issue was not for consideration before the Sessions Court. The Revisional Court has considered the revision application on factual aspect and was influenced by the 7/12 extracts of different land altogether. In the eventuality that the notice was issued to the original complainant, it could have been brought to the notice of the Court that the applicants i.e. present respondents had attempted to mislead the Court.

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10 In view of the facts mentioned hereinabove, it would be appropriate in the interest of justice to set aside the order dated 4^th January, 2013 passed by the Sessions Court, Kalyan. The matter

Talwalkar

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requires reconsideration. It would be expedient in the interest of justice to remand the matter to the Court of Sessions, Kalyan to reconsider the revision application filed by the present respondents bearing Criminal Revision Application No. 128 of 2012 after issuing notice to the present petitioner.

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11 In view of the above observations, the order dated 4/1/2013 passed in Criminal Revision Application No. 128 of 2012 by the Session Court at Kalyan is quashed and set aside. The learned Sessions Court shall issue a notice to the original complainant and decide the revision application on its own merits after hearing both the parties. The learned Sessions Court shall conclude the hearing of the matter within 8 weeks after appearance of the original complainant i.e. present petitioner.

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12 The Rule is made absolute in the above terms. Writ Petition stands disposed of.

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( SMT. SADHANA S. JADHAV , J)

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Talwalkar

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Gopalan Nayar Tulsidas v. the State of Maharashtra and Ors.

Case brief

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Gopalan Nayar Tulsidas v. the State of Maharashtra and Ors.

Case brief

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