This court rejected a criminal application seeking recall of a prior judgment dismissing a writ petition challenging bias and sanctions in a previous judgment. The court held that the prayers were outside the scope, lacked merit, and amounted to an abuse of process despite allegations of fraud and misinformation.
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 APPELATE JURISDICTIONCRIMINAL APPLICATION NO.73 OF 2015 IN CRIMINAL WRIT PETITION NO.4188 OF 20141 Mohini Naraindas Kamwani
2 Dilip Naraindas Kamwani ...Applicants
(petitioners in the
Cri.W.P.No.4188 of 2014)
vs.
1 Shri P.V.Hardas, Judge, Bombay High Court, Mumbai 2 Smt.Mridula Bhatkar, Judge Bombay High Court, Mumbai 3 Hon'ble Registrar General, Bombay High Court, Mumbai, 4 Hon'ble Chief Justice, Bombay High Court, Mumbai 5 CBI Director, New Delhi6 CBI Joint Director-Zone-I, Mumbai 7 State of Maharashtra 8 Union of India ...RespondentsMr.Dilip Naraindas Kamwani the applicant No.2 in
person on behalf of applicant no.1
Mr.D.J.Khambata, Senior Advocate a/w Dr.Abhinav
Chandrachud a/w Rebecca Gonsalves for respondent
no.3
Mr.H.S.Venegavkar for the respondent Nos.5,6 and 8.
CORAM : A.S.OKA, &
A.S.GADKARI, JJ.
DATE : MARCH 13, 2015
P.C.:
1We have heard the second applicant appearing in
person for himself and on behalf of the first
applicant. The first applicant appearing in person
is also present. The prayers made in this
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application read thus:
“(A)Recall the order dated 5.1.2014 in
Criminal W.P.No.4188 of 2014;
(B) Grant Reliefs under Prayers (I) to (XVI)
made in our criminal W.P.No.4188/2014;
(C)Take Suo Motu Cognizance of JMFC Vashi
Court Magistrate Mr.N.S.Lohara as per law
laid down by Hon'ble Supreme Court in AIR
1996 SC 2294 for Jailing us for 3 days in
Kalyan Jail on 25.1.2012 in a false case and
initiate appropriate Criminal and Contempt of
SC proceedings against him for violating
D.K.Basu SC Guidelines;
(D) Issue directions in Criminal Writ
Petition Nos.427 and 429 of 2014 to initiate
criminal prosecution of 4 guilty Police
Officers as per the directions of Hon'ble SC
in its order dated 13.6.2013 in our SLP for
granting reliefs not granted by the
respondents 1 and 2 Learned Judges in their
final Judgment dated 13.6.2013 in our
Criminal W.P.No.1857 of 2012;
(E)Initiate Suo Motu Contempt of SC and HC
by Advocate General for misguiding this
Hon'ble Court on the law of “Deemed Sanction”
in Subramanian Swamy's Case by playing a
fraud on the Court to obtain a favourable and
vitiated order and legally injure 80 year old
very Senior Citizen poor widow.”
2As far as prayer clauses(C) and (D) are
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concerned, the said prayers have nothing to do with
the subject matter of Criminal Writ Petition No.4188
of 2014. In fact, prayer clause (D) relates to
criminal Writ Petition Nos.437 and 439 of 2013 to
which the applicants are parties. The said petitions
are pending in this Court before another Division
Bench. Therefore, prayer clauses(C) and (D) cannot
be considered on merits in the present application.
3This application is filed for recall of the
Judgment and order dated 5th December 2014 passed by
this Court in Criminal Writ Petition No.4188 of
2014. The applicants herein were the petitioners in
the said Writ Petition. The applicants were also the
petitioners in Criminal Writ Petition No.1857 of
2012 which was partly allowed by the Judgment and
Order dated 13th June 2013. the declaration sought
in Writ Petition No.4188 of 2014 was as regards the
said Judgment. The prayers made in the Criminal Writ
Petition No.4188 of 2014 read thus:
“(i) To hold and declare that the said final
Judgment Order dated 13.6.2012 passed by the
Respondent Nos.1 and 2, Ld. Judges Mr.P.V.Hardas
and Ms Mridula Bhatkar is biased and fraudulent
due to non prosecution of 4 guilty Police
Officers as per the law for our unjustified and
illegal arrest and detention, violations of
D.K.Basu SC 1997 Arrest Guidelines, Forgery,
Perjury, False Affidavits etc and Contempt of
Hon'ble SC and Hon'ble SC Directives despite
clear prayers by the petitioner;
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(ii) To direct initiation of appropriate prosecution against respondent Nos.1 and 2, Ld. Judges Mr.P.V.Hardas and Ms Mridula Bhatkar u/s 217, 218, 219, 201, 191, 192, 193, 200, 465, 466, 471, 474 r/w section 120-B of Indian Penal Code;(iii) Grant interim compensation of Rs.2 Crore to petitioner as compensation of damages for hardship caused due to unlawful acts by Respondent Nos.1 and 2, Ld. Judges Mr.P.V.Hardas and Ms Mridula Bhatkar;(iv) Take suo motu cognizance of Contempt of Hon'ble Supreme Court's direction in D.K.Basu's case para 36 by Respondent Nos.1 and 2, Ld. Judges Mr.P.V.Hardas and Ms Mridula Bhatkar for not issuing directions for dismissal of guilty Police Officers for our illegal arrest and jailing and not initiating Contempt of Hon'ble Supreme Court Proceedings against police and try and punish Respondent Nos.1 and 2 under Contempt of Courts Act;(v) Grant ad-interim relief in terms of prayer clause (iii);(vi) That the petitioner has not filed any similar Writ Petition in this Hon'ble Bombay High Court or Hon'ble Supreme Court;(vii) Direct Respondent No.3, Registrar General of Bombay High Court to initiate Criminal prosecution under section 167, 466, 193, 191 etc of IPC against respondent Nos.1 and 2 Ld. Judges Mr.P.V.Hardas and Ms Mridula Bhatkar and also as per the Letter of Ministry of Law andappw73
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Justice sent to Hon'ble Bombay High Court
Registrar General dated 2nd June 2014, Ref.
No.L-19017/14/2013-Jus. on Hon'ble President's
Office forwarding my complaint to Dept. of
Justice as per my Grievances Regtn.
No.PRESEC/E/2014/05517 of 21 March 2014 under
CPGRAMS Portal;
(viii)CBI Director be directed to register F.I.R
against Respondent Nos.1 and 2, Ld. Judges
Mr.P.V.Hardas and Ms. Mridula Bhatkar u/s.217,
218, 219, 201, 191, 192, 193, 200, 465, 466,
471, 474 r/w section 120-B of Indian Penal
Code;
(ix)Direct Respondent No.4 Hon'ble Chief
Justice Bombay High Court to transfer
RespondentNos.1and2.Ld.Judges
Mr.P.V.Hardas and Ms Mridula Bhatkar out of
MaharashtraStatetilltheenquiry/
investigation of the matter in order to ensure
free and fair enquiry as per law laid down in
2014 Cr.L.J. 9 (S.C.);
(x)Since the misbehavior, Criminal offences,
incapacity, illegality, malafides and biasness
of Respondent Nos.1 and 2, Ld. Judges
Mr.P.V.Hardas and Ms Mridula Bhatkar are
exfacially proved therefore, they be directed
to resign from their posts in view of law laid
down by 5-Judge Bench of Hon'ble Supreme Court
in the case of K. Veerswami vs. Union of India
1991 (3) SCC 655;
(xi)If Respondents No.1 and 2 Ld. Judges
Mr.P.V.Hardas and Ms Mridula Bhatkar fail to
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resign within 7 days then appropriate direction
be issued for the forwarding reference for
impeachment proceeding against Respondent Nos.1
and 2, Ld.Judges Mr.P.V.Hardas and Ms Mridula
Bhatkar for their proved misbehaviour,
incapacity to act as proved misbehavior,
incapacity to act as High Court Judge and
biased treatment to 79 year 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;
(xii)Hon'ble Bombay HC Registrar General be
directed to seize the record of the case;
(xiii)The C.B.I be directed to collect the mobile
phone details of all the accused involved in
the conspiracy;
(xiv) That the petitioner is seeking compensation of Rs.20 Crore with an Interim Relief of Rs.2 Crore but reserving her other rights for which the petitioner is filing this criminal W.P and also she is filing a private complaint for defamation under the Torts Law in the appropriate Court.(xv) Grant appropriate costs to the poor petitioners for this petition;(xvi) Grant any other relief in the interest of justice.”4This Court after hearing the second applicant
appearing in person at a considerable length has
rejected the said petition by a detailed Judgment
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and Order dated 5thDecember 2014. By this
Application, the substantive prayer is for recall of
the said Judgment and Order.
5A preliminary objection raised by the learned
senior counsel for the third respondent is to the
maintainability of the present application. He
urged that the bar created by section 362 of the
Code of Criminal Procedure,1973 will squarely apply
to this application and inherent jurisdiction under
section 482 cannot be invoked to override the bar
created by section 362 of the said Code. The
learned senior counsel relied upon the decision of
the Apex Court in the case of Sooraj Devi Vs. Pyare
Lal and others1. The submission of the second
applicant appearing in person is based on the
decision of this Court in the case of Ravindra
Narayan Joglekar2.
6Notwithstanding the objection raised by the
learned senior counsel for the third respondent, we
have patiently heard the second applicant appearing
in person for more than one hour, though the scope
of prayer clause (A) is considerably narrow. We
have minutely perused the averments made in this
application. The second applicant appearing in
person has tendered pursis/written notes of
arguments. He has read over the said pursis/written
notes of arguments. In substance, the submission of
the second applicant appearing in person is that the
1 (1981) 1 SCC 500
2 2008 All M.R.(Cri) 2032
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Judgment and Order of this Court dated 5th December
2014 is erroneous on merits. His submission is that
this Court has not correctly read the decision of
the Apex Court in the case of Subramanian Swamy
Vs.Manmohan Singh3. He reiterates that the said
decision holds that there is a deeming fiction
applicable as far as an application for grant of
sanction to prosecute is concerned. He submitted
that the view taken by this Court that there is no
deemed sanction is completely erroneous. He went to
the extent of finding fault with this Court on the
ground that this Court did not direct the learned
Judges of this Court to file a reply.
7Though we have heard the second applicant
appearing in person at a great length, he has made
submissions as if he is arguing an appeal against
not only the Judgment and Order which is sought to
be recalled but also against the Judgment and Order
in the main Writ Petition No.1857 of 2012 filed by
the applicants which was decided by the Division
Bench by Judgment and Order 13th June 2013. In fact
the applicants filed a Special Leave Petition before
the Apex Court for challenging the said Judgment and
order. On 13th December 2013, the Apex Court disposed
of the Special Leave Petition by passing the
following order:
“Learned counsel for the petitioner wants to
withdraw the Special Leave Petition with
liberty to move the High Court. The Special
3 2012 (Vol.1) SCC (Cri) 1041
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Leave Petition is dismissed as withdrawn with
the aforesaid liberty.”
8As the second applicant has appeared in person,
we have allowed him even to file written submissions
which were read over by him in the Court. Even
assuming that a Review Petition or a Petition for
recall at the instance of the applicants is
maintainable, we find that the second applicant
wants to re-argue the Writ Petition No.4188 of 2014
which we have disposed of by the Judgment and Order
dated 5th December 2014 which is sought to be
recalled. His contention is that the learned Judges
of this Court who decided the criminal Writ Petition
No.1857 of 2012 have committed various offences as
alleged by him. Suffice it to say that there is no
merit in the prayer for recall of the Judgment and
Order dated 5th December 2014.
9The second submission of the second applicant
appearing in person is that the learned Advocate
General who appeared before this Court in Writ
Petition No.4188 of 2014 did not correctly read the
decision of the Apex Court in the case of
Subramanian Swamy. His submission is that the
learned Advocate General who appeared for the
Registrar General of this Court in the said petition
has misled the Court. He submitted that by playing a
fraud upon this Court, the learned Advocate General
obtained the Judgment and Order dated 5th December
2014 which is erroneous. He urged that the learned
Advocate General has done something more than a
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contempt.
10We must note here that the learned Advocate
General made legal submissions on the basis of
certain decisions which were cited before this Court
as precedents. The legal submissions made by him
have been dealt with by this Court and the same have
been accepted by this Court. By no stretch of
imagination, it can be said that the learned
Advocate General has committed any contempt of this
Court either civil or criminal.
11Perhaps the applicants who are appearing in
person have been misguided by someone. What we have
observed in paragraph 38 of the Judgment and Order
dated 5th December 2014, is required to be
reproduced here considering the nature of the
averments made in this Application and the
submissions made across the bar. The observations
made in paragraph 38 apply even to the hearing of
this Application as well.
“38We find that the petitioners are
involved in many litigations. The root cause
of the litigations is the family dispute of
the first petitioner with some of her own
family members including her grand children.
We presume that everything said in the
petition and the written submissions is on
account of frustration and desperation. It
is stated by the second petitioner during the
course of hearing that they are being adviced
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by some lawyers and NGOs. It appears that
the petitioners are not being correctly
advised and perhaps, someone has misled them,
which resulted in filing of this petition.
Therefore, this is a fit case where leniency
deserves to be shown by ignoring
objectionable statements in the petition, in
the written submissions and in what is
canvassed before the Court. As suggested by
the Apex Court in Re. S. Mulgaonkar, this
Court is willing to ignore, “by a majestic
liberalism” what is said by the petitioners.
As a Court exercising jurisdiction under the
Constitution, we refused to get easily
provoked.”
12As observed earlier, the applicants have not
been guided properly. In fact, the act of filing of
this application as far as the prayer clauses (A),
(B) and (E) is an abuse of process of law. However,
for the reasons recorded above, we are showing
restraint by not even directing the applicants to
pay costs.
13We must also note here that while dismissing
the Writ Petition No.4188 of 2014 by Judgment and
Order dated 5th December 2014 of which recall is
sought by present application, we have specifically
kept open the remedy of the petitioners. That is the
observation in paragraph 39 of our Judgment.
14Hence, we hold that there is no merit in the
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prayer clauses (A), (B) and (E). The said prayers
are rejected. As far as prayer clauses(C) and (D)
are concerned, we have made no adjudication as the
said prayers could not have been incorporated in
this application.
15Subject to what is observed above, application
is rejected.
3 issues framed by the court
Whether a criminal application for recall of a judgment exceeding the scope of Section 482 CPC of CrPC can succeed.
Whether the applicants' claims of bias, fraud, and violation of sanctions by the judges involved in a prior writ petition merit a new decision.
Whether a petition alleging misrepresentation of law by a learned Advocate General warrants dismissal or reconsideration.
Colour shows how this judgement treated each authority
Sooraj Devi Vs. Pyare Lal and othersReferred¶53
Sooraj Devi Vs. Pyare Lal and others
Ravindra Narayan JoglekarReferred¶53
Ravindra Narayan Joglekar
Subramanian Swamy Vs. Manmohan SinghDistinguished¶58
Subramanian Swamy Vs.Manmohan Singh
K. Veerswami vs. Union of IndiaReferred¶40
K. Veerswami vs. Union of India
Re. S. MulgaonkarReferred¶74
Re. S. Mulgaonkar
Mohini Naraindas Kamwani
Dilip Naraindas Kamwani
Shri P.V.Hardas
Mridula Bhatkar
CBI Director
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