Writ petition by two litigants seeking prosecution of two sitting High Court Judges for not granting reliefs, including action under the D.K. Basu guidelines, in an earlier writ petition. The court held no offence was made out, rejected the plea of deemed sanction, applied the Judges (Protection) Act, 1985 and rejected the petition.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4188 OF 2014
| 1. | Mohini Naraindas Kamwani, | ) | |
|---|---|---|---|
| 2. | Dilip Naraindas Kamwani, Address- 101, Mauli, 1stFloor, A-Wing, Plot No.29-C, Sector-4, Vashi, Navi Mumbai 400 703 |
) ) ) ).. |
Petitioners |
| Versus | |||
| 1. | Shri P.V. Hardas, Judge, Bombay High Court, Fort, Fountain, Mumbai – 400 001. |
) ) ) |
|
| 2. | Smt. Mridula Bhatkar, Judge, Bombay High Court, Fort, Fountain, Mumbai 400 001. |
) ) ) |
|
| 3. | Hon. Registrar General, Bombay High Court, Fort, Fountain, Mumbai 400 001. |
) ) ) |
|
| 4. | Hon. Chief Justice, Bombay High Court, Fort, Fountain, Mumbai 400 001. |
) ) ) |
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| 5. | CBI Director, Room No.114, North Block, New Delhi 110001. |
) ) ) |
|
| 6. | CBI Joint Director – Zone-I, Tanna House, Nathalal Pareekh Mar Mumbai – 400 039. |
) g,) ) |
|
| 7. | State of Maharashtra, Through Govt. Pleader, Bombay High Court, Fort, Fountain, Mumbai 400 001. |
) ) ) ) |
|
| 8. | Union of India. – |
).. | Respondents |
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Shri Dilip Naraindas Kamwani, Petitioner No.2 in person on behalf of Petitioner No.1 Mohini Kamwani in person.
Shri Sunil V. Manohar, Advocate General along with Ms. Rebecca Gonsalves and Shri Onkar Chandurkar for Respondent No.3. Shri H.S. Venegaonkar for Respondent Nos.5, 6 and 8.
Shri S.K. Shinde, Public Prosecutor along with Mrs. P.H. Kantharia, APP for Respondent No.7.
CORAM : A.S. OKA & A.S.GADKARI, JJ DATED : 5TH DECEMBER 2014
ORAL ORDER: ( PER A.S. OKA, J)
. As per the order dated 20th November 2014 passed by the Hon’ble the Chief Justice on the administrative side, this Petition has been assigned to this Court. We have heard the second Petitioner appearing in person for himself and on behalf of the first Petitioner at great length in the morning session and in the afternoon session. We have heard the learned Advocate General representing the third Respondent. The learned Public Prosecutor represents the seventh Respondent. We have also heard the learned counsel appearing for the fifth, sixth and eighth Respondents.
THE PRAYERS IN THE PRESENT PETITION:
226 of the Constitution of India read thus:-
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“It is therefore most humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to issue appropriate writ, order or direction and further be pleased to :
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issued for the forwarding reference for impeachment proceeding against Respondents No.1 and 2, Ld. Judges Mr. P.V. Hardas and Ms. Mridula Bhatkar for their proved misbehaviour, incapacity to act as High Court Judge and biased treatment to 79 year old senior citizen widow of freedom fighter petitioner and also violating the mandate of article 14 of the constitution about equality before law and equal protection of the law;
FACTS ABOUT CRIMINAL WRIT PETITION NO.1857 OF 2012:
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registering a criminal case against her grandsons and others. It is stated that no action was taken on the basis of the complaint filed by her. The grievance made in this Petition is as regards the illegal detention of the Petitioners therein contrary to the law laid down by the Apex Court in the case of D.K.Basu v. State of West Bengal1 . It will be necessary to make a reference to the reliefs sought in the said Petition by the present Petitioners. There was a prayer made for prosecution of the concerned police officers who were responsible for illegally detaining the Petitioners and for illegally handcuffing the second Petitioner. There was a prayer made for issuing a writ of mandamus to register an offence on the basis of complaint of the Petitioners against one Shri Manoj Karani. A prayer was made for grant of compensation for violation of their fundamental rights. Subsequently, the prayers were added for directing suspension and prosecution of the police officers who were responsible for their illegal arrest and detention. A prayer was made for grant of Rs.10 lakhs to the Petitioners as well as a sum of Rs.10 lakhs to the mentally challenged daughter of the first Petitioner. A direction was sought against the police officers to take action against Sanjeev Karani and Rakhi Sanjeev Karani, who were allegedly in the contact of the underworld persons. A direction/writ was sought to immediately suspend and prosecute the concerned police officers for illegally detaining and/or handcuffing the Petitioners. A prayer was made for taking necessary action against all the members of 1 (1997)4 SCC 416
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Karani family viz. Manoj Karani, Sanjeev Karani, Jeetendra Karani, Narendra Karani, Sunita Karani, Urmi Manoj Karani and Rakhi Sanjeev Karani.
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“Learned counsel for the petitioner wants to withdraw the Special Leave Petition with liberty to move the High Court. The Special Leave Petition is dismissed as withdrawn with the aforesaid liberty”.
SUBMISSIONS OF THE PETITIONERS :
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an affidavit running into 400 pages as well as a Perjury Application running into 400 pages was filed by the Petitioners which have been misplaced by the office of this Court. His grievance is that the said Petitions are not being heard for last several months. He has also made a grievance as regards the learned Magistrate at Vashi. He pointed out that an action was taken against the learned Magistrate and he was suspended. He pointed out that a complaint was filed against the Petitioners on which process was issued. He pointed out that a revision application was required to be preferred by the Petitioners in which relief was partly granted to the Petitioners. Therefore, the Petitioners have moved this Court under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the process issued in which the say of the Respondents was called for. The second Petitioner appearing in person pointed out the manner in which the Petitioners were treated by the learned Sessions Judge pending the hearing of an application for Anticipatory Bail filed by them. He pointed out that in the Case No.SCC 7125 of 2014 before the Judicial Magistrate, First Class, Vashi, a charge sheet has been filed against the seven members of Karani family. He invited our attention to the decision of the Apex Court in the case of D.K. Basu and in particular paragraph 36 thereof. He submitted that there was already a finding recorded by the Division Bench in the Writ Petition No.1857 of 2012 that the police officers were indulging in forgery and perjury. He urged that though there were no specific
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prayers for initiating action for contempt, in terms of the directions contained in the Paragraph 36 in the case of D.K. Basu, this Court while disposing of the earlier Petition ought to have taken suo motu action of initiating contempt proceedings against the police officers who defied the directions of the Apex Court. He urged that a departmental inquiry ought to have been ordered against the erring police officers. His submission is that the learned Judges of the Division Bench are guilty of committing criminal conspiracy and they have committed an offence under Sections 218 and 219 read with Section 120B of the Indian Penal Code. He urged that the first and second Respondents who are the sitting judges of this Court who partly allowed earlier Writ Petition No.1857 of 2012 filed by the Petitioners have conspired with the guilty police officers.
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2 (2012)3 SCC 64
3 Decided on 6th August 2014 in WP © No.305 of 2007
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fraudulent and at any stage of any other proceedings, this Court or any Court can go into the question whether the said judgment is obtained by fraud. He submitted that this Court can always go into the issue whether the said judgment is obtained by fraud and record a finding that it is nullity. He relied upon a decision of the Apex Court in the case of Union of India and others v. Ramesh Gandhi4 . He submitted that this Court can go into the question whether the judgment of the Coordinate Bench is nullity. He submitted that when a common man commits forgery or perjury, he is sent to jail for 3 to 7 years, but when a police officer commits a forgery or perjury, he is being given a clean chit. He urged that only a part of the judgment of the first and second Respondents in Criminal Writ Petition No.1857 of 2012 is nullity. He pointed out that by not following the mandatory law laid down by the Apex Court in the case of D.K. Basu , the first and the second Respondents have committed an offence. He submitted that on one hand, the order of registration of First Information Report passed on the complaint filed by the Petitioners has been stayed by this Court on 6th February 2014 without hearing them and on the other hand, an affidavit-in-reply running into 400 pages and Perjury Application running into 400 pages filed by the Petitioners in the said Writ Petition filed by the Police Officers have been misplaced and the stay continues to operate.
4 (2012)1 SCC 476
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SUBMISSIONS OF THE LEARNED ADVOCATE GENERAL AND THE COUNSEL FOR CBI:
5 2006(5)Mh.L.J.639
6 1991(3) SCC 655
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filing of the present Petition is nothing but gross abuse of the process of law. As far as the order passed in the Special Leave Petition filed by the Petitioners is concerned, he urged that in view of the liberty granted by the Apex Court, if it is otherwise permissible in law, the Applicants could have applied to this Court for grant of reliefs which were not granted by the Division Bench in the earlier Petition. He urged that liberty granted by the Apex Court cannot be construed to mean that a liberty was granted to approach this Court by filing a Petition for prosecuting the Judges of this Court who deliverd the Judgment which was challenged before the Apex Court by the Petitioners. He urged that the Judgment of this Court has become final as the same has been confirmed in a Special Leave Petition filed by the State of Maharashtra. The learned counsel appearing for the fifth and sixth Respondents urged that the Central Bureau of Investigation which is a special agency cannot take cognizance of an offence like an ordinary police station. He placed reliance on the communication dated 30th June 2014 issued by the CBI ACB to the Director General of Police of the State Government and urged that no direction can be issued against the CBI.
CONSIDERATION OF SUBMISSIONS :
perused the written submissions styled as Purshis and Purshis 2. At the outset, we must note here that in the Special Leave Petition filed by the
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State of Maharashtra and Others, the judgment and order dated 13th June 2013 passed by a Division Bench of this Court (of the first and second Respondents) in Criminal Writ Petition No.1857 of 2012 has been confirmed and the Special Leave Petition has been dismissed.
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the Respondents No.1 and 2 Ld. Judges Mr. P.V. Hardas and Ms. Mridula Bhatkar HAD PROSECUTED THE 4 GUILTY POLICE OFFICERS AS PER THE LAW AND OUR REPEATED PRAYERS – THEN WE WOULD NOT HAVE FACED THIS ADDITIONAL LITIGATION TROUBLES, COSTS, MENTAL AND PHYSICAL TORTURE – ESPECIALLY FOR AN 80 YEAR OLD VERY SENIOR CITIZEN WIDOW OF FREEDOM FIGHTER HAVING ALSO TO TAKE CARE OF A MENTALLY CHALLENGED DAUGHTER TOO.
WE WERE FORCED TO FILE THIS PETITION IN NOVEMBER 2014 BECAUSE:”
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Thus, the real grievance of the Petitioners appears to be as regards the failure to grant relief to them even in other proceedings.
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200, 465, 466, 471, 474 read with Section 120-B of the Penal Code. There is no allegation of meeting of minds which is the foundation of conspiracy. There is also an allegation of commission of offences under Sections 167, 466, 193 and 191 of the Penal Code. By not granting a particular relief to the Petitioners while deciding the Petition filed by the Petitioners, the learned Judges have not committed any offence. Even taking the case made out by the Petitioners in this Petition as it is, we find that no case of commission of any offence alleged by the Petitioners against the first and the second Respondents is made out. Therefore, no action can be taken on the basis of the Memorandum dated 2nd June 2014. Refusal to grant a particular relief in judicial proceedings by the Judges does not amount to commission of any offence. The said contention is not only wrong but preposterous.
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assuming without accepting that the reliefs were wrongly denied to the Petitioners, we fail to understand as to how the judgment of the Division Bench will be rendered null and void especially in the light of the fact that the case made out by the Petitioners as regards their illegal detention has been accepted by the Division Bench under the very judgment and compensation has been granted to them. Moreover, the ingredients of fraud have not been pleaded. Therefore, we are unable to accept the submission that a part of the judgment and order dated 13th June 2013 is nullity.
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on the decision of the Apex Court in the case of Subrmanian Swamy and
in particular Paragraph 81 thereof which reads thus:-
“81. In my view, Parliament should consider the constitutional imperative of Article 14 enshrining the Rule of Law wherein 'due process of law' has been read into by introducing a time-limit in Section 19 of the PC Act, 1988 for its working in a reasonable manner. Parliament may, in my opinion, consider the following guidelines:
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“48 In para 58 of the judgment in Vineet Narain, the Court gave several directions in relation to CBI, CVC and the Enforcement Directorate. In para 58(I)(15), the Court gave the following direction:
“58.(I)(15) Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office”.
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the case of Vineet Naraian , the Apex Court issued certain directions. One of the directions issued has been quoted above by the Apex Court. The direction is that the time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General or any other law officer in the office of the Attorney General. We must note here that even in the case of Vineet Naraian and Paragraph 48 of the decision of the Apex Court in the case of Subramanian Swamy , the Apex Court has not held that if the time limit for grant of sanction for prosecution is not adhered to, the sanction will be deemed to have been granted. There is no provision in the relevant penal statutes regarding deemed sanction and that is the reason why in Paragraph 81 of the decision in the case of Subramanian Swamy , the Apex Court recommended to the Parliament to consider the suggestion of incorporating a provision in the statute regarding deemed sanction.
7 (1998)1 SCC 226
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or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.”
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taken by the learned Single Judge on the interpretation of Sections 3 and 4 of the said Act of 1985.
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competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause (I)(15) of the directions contained in para 58 of the judgment of this Court in Vineet Narain v. Union of India and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC) are the questions which require consideration in this appeal.”
the Apex Court in the case of K. Veeraswami and what is directed by the Apex Court in Paragraph 60 thereof which reads thus:-
“60. ….. We, therefore, direct that no criminal case shall be registered under Section 154, CrPC against a Judge of the High Court, Chief Justice of high Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the government shall consult any other Judge or Judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief justice of India. Accordingly the directions shall go to the government. These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the executive for collateral purpose.”
(emphasis added)
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concerned Sanctioning Authority to decide the Application for sanction within a specified time. We have already recorded our finding that even accepting the case made out by the Petitioners as correct, no offence is made out as against the first and the second Respondents. Therefore, we are unable to issue such a direction sought by the Petitioners. We, however, make it clear that we have not adjudicated upon the issue whether the Sanctioning Authority can grant sanction to prosecute the first and second Respondents and it is for the Sanctioning Authority to deal with the said issue in accordance with law. However, the Sanctioning Authority is bound to consider the Prohibition under the said Act of 1985 as well as findings recorded in this Judgment while taking appropriate decision.
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Court shall be responsible for the same. In paragraph 14 of Purshis 2, the Petitioners have stated thus:
“14. PLEASE GIVE ME JUSTICE – OR – DO FULL INJUSTICE TO ME – JAIL ME FOR 100 YEARS OR HANG ME – RAHTER THAN HARASSING AND TORTURING ME AT THE AGE OF 80 YEARS – LIKE THIS – FOR NO FAULT OF MINE – WE ARE THE VICTIMS AND EVEN HIGH COURT IS DOING MORE INJUSTICE TO US !!!
PLEASE NOTE – IF ANYTHING HAPPENS TO ME OR MY FAMILY – THE HIGH COURT SHALL BE RESPONSIBLE FOR THE SAME – UNDER THESE CIRCUMSTANCES EVEN MY “NATURAL” DEATH WILL BE A MURDER – BECAUSE HOW MUCH INJUSTICE CAN AN 80 YEAR POOR WIDOW VICTIM TAKE SINCE LAST 4 YEARS ???!!!”
“16. Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and Rule of Law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to "terrorize" or "intimidate" Judges with a view to "secure" orders which they want. This is basic and
7 (1998)4 SCC 577
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fundamental and no civilised system of administration of justice can permit it... ” (emphasis added)
“The court will not be prompted to act as a result of an easy irritability. Much rather, it shall take noetic look
8 (1978)3 SCC 339
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at the conspectus of features and be guided by a constellation of constitutional and other considerations....”
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appearing in person has made some statements about the merits of the other pending litigation including the Writ Petition filed in this Court by the police officers, we make it clear that we have not made any adjudication on the said issues involved in other pending litigations.
(A.S.GADKARI, J) ( A.S. OKA, J )
3 issues framed by the court
Whether the sitting Judges who decided the earlier writ petition committed any offence by refusing reliefs, so as to warrant criminal prosecution?
Whether sanction to prosecute the Judges is deemed to have been granted on the sanctioning authority's failure to decide within the suggested time?
Whether a part of the earlier judgment is a nullity on the ground that it was obtained by fraud?
Colour shows how this judgement treated each authority
D.K. Basu v. State of West BengalReferred¶19
(1997)4 SCC 416 · Who else cites this
Subramanian Swamy v. Manmohan Singh and anotherExplained¶21
(2012)3 SCC 64 · Who else cites this
Manzoor Ali Khan v. Union of India and othersReferred¶21
Decided on 6th August 2014 in WP (C) No.305 of 2007
Vineet Narain v. Union of IndiaExplained¶24
(1998)1 SCC 226 · Who else cites this
N.V. Shamsundar, Civil Judge (Sr.Dn.) v. Savitabai W/o Sambhirmal Singhvi and OthersFollowed¶26
2006(5)Mh.L.J.639 · Who else cites this
K. Veeraswami v. Union of India and othersRelied on¶29
1991(3) SCC 655 · Who else cites this
In Re S. MulgaokarReferred¶37
(1978)3 SCC 339 · Who else cites this
Chetak Construction Ltd. v. Om Prakash and OthersRelied on¶34
(1998)4 SCC 577 · Who else cites this
Union of India and others v. Ramesh GandhiReferred¶10
(2012)1 SCC 476 · Who else cites this
9 provisions across 6 enactments
Mohini Naraindas Kamwani
Dilip Naraindas Kamwani
Shri P.V. Hardas, Judge, Bombay High Court
Smt. Mridula Bhatkar, Judge, Bombay High Court
Hon. Registrar General, Bombay High Court
State of Maharashtra
A.S. Oka
A.S. Gadkari
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
