Submission of Assistant Commissioner of Police (A.C.P.) and Investigating Officer (I.O.) of Pune Police found to be false.
Contempt proceedings against A.C.P. to be heard by Division Bench.
Cosmos Bank official made accused of false implication of petitioner.
Mumbai :- In a rarest of rare case the Division Bench of Bombay High Court on 16.08.2019 recalled its own order in a Criminal Writ Petition. The earlier order was passed on the false statement of Police Investigating Officer. Which later bought to the notice of Court by Advocate appearing for the petitioner.
The Criminal Writ Petition No. 721 of 2019 was filed by Chandralekha Arhana of Pune for quashing the F.I.R. maliciously lodged by the Cosmos Bank.
The various dispute about a loan of around ₹ 62 crores and its non-payment is being agitated however, Economic Offences Wing (EOW) Pune found that the official of Cosmos Bank are involved and I.O. made application for making Bank official as accused.
In order to divert attention from the core issue, the COSMOS Bank official lodged a false and frivolous F.I.R. against the petitioner about one transaction of B.M.W. car
Petitioner filed Writ Petition for quashing the F.I.R. The said Criminal Writ Petition No. 721 of 2019 came for hearing on 21.02.2019 before Division Bench of Justice B. P. Dharmadhikari and Justice Revati Mohite Dere.
On that day the I.O. from Pune made a false and misleading statement before the Court regarding money paid to the petitioner. Relying on that statement High Court refused to quash the proceeding.
Then petitioner filed review petition being Criminal Application No. 127 of 2019 producing documentary proof and pointed out the illegality and injustice caused to her.
Counsel for the Complainant Cosmos Bank and APP tried to convince the Court to not to recall saying that, in criminal cases Court cannot recall the order due to bar under section 362 of Criminal Procedure Code.
To which advocate Nilesh Ojha, appearing for the petitioner pointed out that, when any order is passed on the basis of wrong statement or Court misled itself then such order is nullity and even Criminal Court is having inherent power to recall such order.
The prayer of petition reads as under;
(a) that this Hon’ble Court may be pleased to recall its order dated 21.02.2019 passed by this Hon’ble Court (Coram: B. P. Dharmadhikari and Revati Mohite Dere JJ.) in captioned petition, being Writ Petition No. 721 of 20l9, in view of law laid down by full bench of the Hon’ble Apex Court in the matters of (i) M. S. Ahlawat Vs. State of Haryana & Anr. (2000 1 SCC 278, (ii) Indian Bank Vs. Satyam Fibres AIR 1996 SC 2529, (iii) Ram Chandra Singh Vs. Savitri Devi and Ors. (2003) 8 SCC 319 and so also by this Hon’ble Court in the matter of (iv) Ravindra Narayan Joglekar Vs. Encon Exports Pvt. Ltd. And Ors. 2008 ALL MR (Cri.) 2032 and may be further pleased to examine the issue raised in the petition afresh, by taking into consideration the submission made in the present application as well;
In a recent Judgment in BMD hotels Vs. P. Murali MANU/TN/3095/2019 this issue is dealt in depth. In another case of Anil Khadkiwala Vs. State 2019 SCC OnLine SC 941 the issue was discussed by Supreme Court.
Earlier it was the stand of the Bank that the Documents produced by the petitioner are part of the investigation and unauthorisedly used by the petitioner. This contention of the Bank was countered by Mr. Ojha by relying upon Yashwant Sinha’s case (2019) 6 SCC 1 where it is ruled that improperly procured documents can also be relied by the Court.
Later in review Mr. Ojha pointed out to the Court about the Division Bench Judgment in Kapol Co-operative Bank’s case 2005 Cr. L. J. 765 where Bombay High Court punished Senior Police Inspector of Cuffe Parade Police Station, Mumbai under Contempt of Court Act for making a false statement before High Court with ulterior motive that High Court will dismiss the Writ Petition.
This contention was noted by the High Court and to be considered by the regular Bench.
It is observed by the High Court as under;
“2. In view of this disclosure it appears that when the foundation of order dated 21/2/2019 does not stand, the writ petition therefore needs to be reheard on merits.
3. Accordingly, we recall the order dated 21/2/2019 and place the Writ Petition No. 721/2019 for admission before the appropriate Bench as per roster assigned.
5. In view of this statement made, learned counsel for the applicant requests the Court to initiate suitable contempt proceedings against the Investigating Officer of respondent No.1.
6. We keep that contention open and it can be looked
into while considering Writ Petition No.721/2019 for admission.
7.Accordingly, Application No.127/2019 is allowed and disposed of.”
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