Bombay High Court
Hemant S Wani And Ors vs The State Of Maharashtra And Ors on 19 April, 2024
Author: N.J.Jamadar
Bench: N.J.Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
SUO MOTU WRIT PETITION NO.1 OF 2022
High Court on its own Motion ... Petitioner
versus
The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO.2184 OF 2022
Sayed Ali Ahsraf and Ors. ... Petitioner
versus
The State of Maharashtra ... Respondent
WITH
WRIT PETITION NO.3649 OF 2022
Hemant Sudhakar Wani and Ors. ... Petitioners
versus
The State of Maharashtra and Ors. ... Respondents
WITH
WRIT PETITION NO.3805 OF 2022
Anand P. Paranjape and Anr. ... Petitioners
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.3808 OF 2022
Hemant S. Wani & Ors. ... Petitioners
versus
The State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.3728 OF 2022
Anand P. Paranjpe and Ors. ... Petitioners
versus
The State of Maharashtra and Ors. ... Respondents
WITH
WRIT PETITION NO.3810 OF 2022
SSP 1/18
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Mohammed Sabir Husain Shaikh and Anr. ... Petitioners
versus
State of Maharashtra and Anr. ... Respondents
WITH
WRIT PETITION NO.4842 OF 2022
Hemant S. Wani and Ors. ... Petitioners
versus
The State of Maharashtra and Ors. ... Respondents
WITH
WRIT PETITION NO.353 OF 2023
Chetan Ramesh Patil and Ors. ... Petitioners
versus
The State of Maharashtra and Ors. ... Respondents
Mr. Vinod Utekar Mr. Pranil Sonawane for Petitioners in WP Nos.2184 of 2022, 3649
of 2022, 3805 of 2022, 3808 of 2022, 3728 of 2022, 3810 of 2022, 4842 of 2022 and
353 of 2023.
Mr. A.R.Patil, APP for the State.
CORAM: DEVENDRA KUMAR UPADHYAYA, C.J. &
N.J.JAMADAR, J.
DATE : 19 APRIL 2024 P.C.
1. This Special Bench has been constituted pursuant to the directions of the Supreme Court in Writ Petition (Civil) No.699 of 2016. In the said Writ Petition, the Supreme Court was seized with an issue of paramount public importance pertaining to inordinate delay, inquiry/investigation and/or criminal trials pending against the legislators under various enactments. The Supreme Court passed various orders to ensure speedy dispensation of justice delivery in the trials pending against the sitting and former legislators.
SSP 2/18
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2. In an order dated 10 August 2021 dealing with the issue of withdrawal of criminal cases pending against the legislators by the State by utilizing the power vested under Section 321 of the Code of Criminal Procedure, 1973 ('the Code') for extraneous and political consideration, the Supreme Court emphasised that the said power under Section 321 of the Code was required to be exercised with utmost good faith to serve the larger public interest. The Supreme Court directed, inter alia, that no prosecution against the sitting or former MPs/MLAs shall be withdrawn without the leave of the High Court. Relevant part of the directions read as under :
"In view of the law laid down by this Court, we deem it appropriate to direct that no prosecution against a sitting or former M.P./M.L.A. shall be withdrawn without the leave of the High Court in the respective suo-motu writ petitions registered in pursuance of our order dated 16-09-2020. The High Courts are requested to examine the withdrawals, whether pending or disposed of since 16.09.2020, in light of guidelines laid down by this Court."
3. On 22 March 2024, we had passed an order with regard to the 22 cases, which were already withdrawn since 16 September 2022. After perusal of the record and proceedings of each of those cases, we had recorded our satisfaction that the concerned Magistrates had given consent for withdrawals from prosecution keeping in view the principles which govern the grant of consent.
4. As regards the Petitions, which have been preferred seeking leave of this Court pursuant to the aforesaid directions of the Supreme Court, we had directed the SSP 3/18 1 smwp 1 of 2022.doc learned Public Prosecutor to take instructions and file affidavit/s in reply. Accordingly, Affidavits in Reply have been filed on behalf of the State in each of the eight petitions. We have heard the learned Counsel for the Petitioners and the learned APP for the State. With the assistance of the learned Counsel, we have also perused the material qua each of the Petitions.
5. In the affidavits in reply filed on behalf of the State, it is contended that the State took a policy decision to withdraw the cases arising out of social and political causes as enumerated in G.R. dated 14 March 2016 and 16 December 2020. A committee has been constituted by the State to consider the withdrawal of the prosecutions in those categories of cases, if there was no loss of life or destruction of property in excess of Rs.5 lakhs. The Committee examined the proposals and made recommendations to the State Government, and, thereupon, instructions were issued to the concerned APP to file applications for withdrawal of the prosecution.
6. Before adverting to note the facts in each of the Petitions and consider the question as to whether the leave of this Court for withdrawal from the prosecution can be granted in the peculiar facts of the given Petition, we deem it appropriate to note the general principles which govern the grant of consent for the withdrawal from the prosecution under Section 321 of the Code.
7. While giving consent under Section 321 of the Criminal Procedure Code, 1973 for the withdrawal from the prosecution, the Court has to see whether the application SSP 4/18 1 smwp 1 of 2022.doc has been made in good faith, in the interest of public policy and justice and not to thwart or stifle the process of law. The Court after considering these facets of the case, will have to see whether the application suffers from such improprieties or illegalities as to cause manifest injustice if consent is given. (Sheonandan Paswan V/s. State of Bihar1).
8. In the order dated 10 August 2021, the Supreme Court observed that the power under Section 321 is a responsibility which is to be utilized in public interest, and cannot be used for extraneous and political considerations. The Supreme Court referred to the principles culled out in the case of State of Kerala V/s. K. Ajith and Ors.,2 as under :
"25. The principles which emerge from the decisions of this Court on the withdrawal of a prosecution under Section 321 of the CrPC can now be formulated:
25.1 Section 321 entrusts the decision to withdraw from a prosecution to the public prosecutor but the consent of the court is required for a withdrawal of the prosecution.
25.2 The public prosecutor may withdraw from a prosecution not merely on the ground of paucity of evidence but also to further the broad ends of public justice.
25.3 The public prosecutor must formulate an independent opinion before seeking the consent of the court to withdraw from the prosecution. 25.4 While the mere fact that the initiative has come from the government will not vitiate an application for withdrawal, the court must make an effort to elicit the reasons for withdrawal so as to ensure that the 1 (1987) 1 SCC 288 2 (2021) 17 SCC 318 SSP 5/18 1 smwp 1 of 2022.doc public prosecutor was satisfied that the withdrawal of the prosecution is necessary for good and relevant reasons.
25.5 In deciding whether to grant its consent to a withdrawal, the court exercises a judicial function but it has been described to be supervisory in nature. Before deciding whether to grant its consent the court must be satisfied that:
(a) The function of the public prosecutor has not been improperly exercised or that it is not an attempt to interfere with the normal course of justice for illegitimate reasons or purposes;
(b) The application has been made in good faith, in the interest of public policy and justice, and not to thwart or stifle the process of law;
(c) The application does not suffer from such improprieties or illegalities as would cause manifest injustice if consent were to be given;
(d) The grant of consent sub-serves the administration of justice; and
(e) The permission has not been sought with an ulterior purpose unconnected with the vindication of the law which the public prosecutor is duty bound to maintain;
25.6 While determining whether the withdrawal of the prosecution subserves the administration of justice, the court would be justified in scrutinizing the nature and gravity of the offence and its impact upon public life especially where matters involving public funds and the discharge of a public trust are implicated; and 25.7 In a situation where both the trial judge and the revisional court have concurred in granting or refusing consent, this Court while exercising its jurisdiction under Article 136 of the Constitution would exercise caution before disturbing concurrent findings. The Court may in exercise of the well- settled principles attached to the exercise of this jurisdiction, interfere in a case where there has been a failure of the trial judge or of the High Court to apply the correct principles in deciding whether to grant or withhold consent."
SSP 6/18
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9. Keeping in view the aforesaid principles, we propose to examine the aspect of grant of leave for withdrawal of the underlying prosecution in each of the petitions. WRIT PETITION NO.2184 OF 2022
10. The Petitioners are arraigned in C.R.No.45 of 2021 registered with Naupada Police Station for the offences punishable under Sections 135 read with Section 37(3) of the Maharashtra Police Act, 1951. The indictment against the Petitioners is that on 17 June 2021 while General Body Meeting of the Thane Municipal Corporation was underway, the Petitioners, including the Petitioner No.2, who was then a Member of the Maharashtra State Legislative Assembly, barged into the Conference Hall with 60 to 70 students pursuing education in Urdu Medium and caused obstruction to the proceedings of the General Body Meeting.
11. In the affidavit in reply, it is contended that the Committee constituted by the State Government had recommended the withdrawal of the prosecution. However, by an order dated 24 February 2022, the learned Judicial Magistrate, First Class, Thane, declined to grant consent in view of the order passed by the Supreme Court in Writ Petition (Civil) No.699 of 2016 for want of leave of the High Court. It is contended that the Committee on 17 May 2023, has again considered the proposal for withdrawal of the prosecution and resolved to recommend to the State Government to withdraw from the prosecution. Copy of the communication is annexed to the affidavit in Reply at Exhibit 1.
SSP 7/18
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12. We have considered the nature of the allegations as well as the gravity of the offences. Prima facie, it appears that the genesis of the alleged offences is in an agitation pertaining to the rights of a particular section of the students. The Petitioners allegedly entered into Conference Hall of the Thane Municipal Corporation in breach of the order promulgated under Section 37 of the Act, 1951. The offence entail punishment of fine which may extend to Rs.2,500/- only. The decision for withdrawal, therefore, seems to be justifiable and does not appear to be guided by extraneous and political considerations.
13. We are, thus, inclined to grant leave for the withdrawal of the prosecution and allow the Petition to the extent of granting leave for withdrawal.
14. In the event, the Public Prosecutor files an application for withdrawal under Section 321 of the Code, the learned Magistrate shall pass appropriate orders in accordance with law.
Petition disposed.
WRIT PETITION NO.3649 OF 2022
15. The Petitioners are arraigned in C.R.No.34 of 2018 for the offences punishable under Section 135 read with Section 37(3) of the Maharashtra Police Act, 1951 and Section 188 of the Indian Penal Code, 1860 for having organized and participated in 'Bharat Bandh' Strike purportedly aggrieved by the increase in the fuel prices and inflation, in breach of the prohibitory orders issued by the Competent SSP 8/18 1 smwp 1 of 2022.doc Authority. The Petitioner No.2 was then a Member of the Maharashtra State Legislative Assembly and the Petitioner No.3 was the former Member of Parliament.
16. In the affidavit in reply, it is contended that the Committee has considered the proposal for withdrawal and decided to recommend the withdrawal of the prosecution to the State Government. Copy of the communication dated 21 June 2023 addressed to the Assistant Director of Public Prosecution is annexed to the affidavit in reply.
17. Evidently, the prosecution arose out of breach of prohibitory orders by organizing a strike as a part of the agitation against the price rise. The offence punishable under Section 135 of the Act, 1951 entails punishment of fine which may extend to Rs.2,500/- only. The offence punishable under Section 188 of the Indian Penal Code entails punishment which may extend to six months or with fine which may extend to one thousand rupees, or with both.
18. In the backdrop of the facts of the case, the decision of the Committee to withdraw the prosecution appears to be guided by considerations which advance the object of withdrawal of the prosecution arising out of social and political agitations.
19. We are, thus, persuaded to grant leave for withdrawal of the prosecution.
20. In the event, the Public Prosecutor files an application for withdrawal under Section 321 of the Code, the learned Magistrate shall pass appropriate orders in accordance with law.
SSP 9/18
1 smwp 1 of 2022.doc Petition disposed.
WRIT PETITION NO.3805 OF 2022
21. The Petitioners are arraigned in C.R.No.1965 of 2017 for the offences punishable under Section 135 read with 37(3) of the Maharashtra Police Act, 1951 and Section 188 of the Indian Penal Code for having held an agitation on the railway tracks at Kalwa Railway Station against the bullet train project and for increasing the frequency of the local trains, in breach of the prohibitory orders.
22. In the affidavit in reply, the Respondent contends that neither the proposal to withdraw the prosecution has been considered by the Committee, nor any application for withdrawal of the prosecution has been filed by the Public Prosecutor. Instead, the Petitioner Nos.1 and 2, former member of the Parliament and member of the Legislative Assembly, respectively, had preferred an application for withdrawal of the prosecution.
23. By an order dated 21 June 2023, the learned Magistrate was persuaded to reject the application on two grounds; first, the State had not filed an application for withdrawal of the prosecution and second, there was no leave of the High Court for withdrawal of the prosecution.
24. From the perusal of the order dated 21 June 2023 passed on an application (Exhibit 21) in SCC No.28006 of 2019, it becomes evident that the State had not filed SSP 10/18 1 smwp 1 of 2022.doc an application for withdrawal of the prosecution and the Petitioner Nos.1 and 2 - accused had preferred the said application for withdrawal purportedly on the premise that in the year 2019, the then APP had filed an application for withdrawal. The learned Magistrate noted that the said application for withdrawal was not supported by any authorization or order of the State Government.
25. In any event, the said application for withdrawal by the accused was wholly misconceived. An accused has no right to seek direction to the State to withdraw from the prosecution. It is for the Public Prosecutor to make such an application for withdrawal from the prosecution. Resultantly, the instant Petition seeking withdrawal of the prosecution and, in the alternative, a direction to the State to take appropriate steps for withdrawal of the prosecution is clearly misconceived. No such direction can be given in teeth of the express statutory provisions under Section 321 of the Code, either in exercise of extra-ordinary writ jurisdiction or inherent powers vested in the Court under Section 482 of the Code. Therefore, the Petition deserves to be dismissed, and accordingly stands dismissed.
26. We may not be understood to have foreclosed the option of the State Government to withdraw from the prosecution, if it is so advised. Since the learned Public Prosecutor had not sought withdrawal from prosecution, we have dismissed the Petition on the count of locus of the Petitioners-accused to seek such direction for withdrawal and/or grant of leave for withdrawal from prosecution. SSP 11/18
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27. No costs.
WRIT PETITION NO.3808 OF 2022
28. The Petitioners are arraigned in C.R.No.12 of 2015 registered with Naupada Police Station for an offence punishable under Section 135 read with Section 37(3) of the Maharashtra Police Act, 1951 for having organized an agitation in connection with a statement made by a political functionary that members of a particular community be disenfranchised. The Petitioner No.2 was then Member of the Maharashtra Legislative Assembly.
29. The Committee constituted by the State Government resolved to recommend to the State Government to withdraw the prosecution. A communication was addressed to the Assistant Director of Prosecution on 27 April 2023 (Exhibit 1 to the Affidavit in reply).
30. Evidently, the genesis of the alleged offences is in a political issue. The Committee has justifiably recommended the withdrawal of the prosecution. Thus, having regard to the nature of the accusation, circumstances of the case and the punishment the offence entails, we are inclined to grant leave to withdraw the prosecution arising out of C.R.No.12 of 2015.
31. In the event, the Public Prosecutor files an application for withdrawal under Section 321 of the Code, the learned Magistrate shall pass appropriate orders in SSP 12/18 1 smwp 1 of 2022.doc accordance with law.
Petition disposed.
WRIT PETITION NO.3728 OF 2022
32. In this petition, the Petitioners were arraigned in C.R.No.88 of 2018 for the offences punishable under Sections 143, 144, 147, 149 and 427 of the Indian Penal Code.
33. In the intervening period, the Court is informed, the Petitioners have been acquitted by the learned Magistrate by a judgment and order dated 3 February 2024.
34. As the underlying prosecution came to an end, the Petition stands disposed. WRIT PETITION NO.3810 OF 2022
35. The Petitioners are arraigned in C.R.No.32 of 2012 registered with Mumbra Police Station for the offences punishable under Section 135 read with Section 37(3) and Section 131 read with Section 33(w) of the Maharashtra Police Act, 1951 and Rule 15 of the Noise Pollution Rules, 2003, with the allegations that the Petitioner No.2, who was then a Member of the Maharashtra Legislative Assembly, had held an election meeting on 10 February 2012 after 22.45 p.m. and addressed a gathering by using a loud speaker.
36. The Committee in its meeting held on 21 June 2021, resolved to recommend to the State Government to withdraw the prosecution, as is evident from the letter dated 25 June 2021 addressed to the Assistant Director of Prosecution. SSP 13/18
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37. The prosecution has its genesis in a purely electioneering issue. The decision to withdraw the prosecution cannot be faulted at for being driven by extraneous consideration. The offence punishable under Section 135 of the Act, 1951 entails punishment of fine which may extend to Rs.2,500/-, abd the offence punishable under Section 131 entails punishment of fine which may extend to Rs.500/-.
38. We are, thus, satisfied that having regard to the nature of the allegations, circumstances of the case and the gravity of the offences, leave for withdrawal of the prosecution deserves to be granted. Thus, leave to withdraw the prosecution arising out of C.R.No.32 of 2012 is granted.
39. In the event, the Public Prosecutor files an application for withdrawal under Section 321 of the Code, the learned Magistrate shall pass appropriate orders in accordance with law.
Petition disposed.
WRIT PETITION NO.4842 OF 2022
40. The Petitioners are arraigned in C.R.No.360 of 2014 registered with Naupada Police Station for the offences punishable under Sections 143, 145, 146, 149, 153, 506 of IPC and Section 135 read with Section 37(3) of the Maharashtra Police Act, 1951. The Petitioner No.2 was then a Member of the Maharashtra State Legislative Assembly. On 13 September 2014, a political talk show was organized by Saam TV news channel. In the said show, the first informant stated that no development work SSP 14/18 1 smwp 1 of 2022.doc was carried out in Mumbra constituency, which the Petitioner No.2 then represented. An altercation ensued. The first informant alleged, the Petitioner Nos.1 and 3 and other members of the political party, to which the Petitioner No.2 represented, assaulted him by fist blows. His son and son's friend came to his rescue. They were also assaulted by the named accused and their associates. The Petitioner No.2 had allegedly instigated the assailants.
41. In the affidavit in reply, it is contended that the Committee in its meeting held on 8 February 2023, considered the proposal and resolved to recommend to the Government to withdraw the prosecution. Copy of the communication addressed to the Assistant Director of Public Prosecution dated 27 April 2023 is annexed to the Affidavit in reply (Exhibit 1).
42. We have given careful consideration to the material on record. The allegations are of forming of an unlawful assembly and committing offences in prosecution of the common object of the unlawful assembly. It appears that the alleged incident occurred during the course of a political talk show organized by a news channel. Prima facie, the assembly was not unlawful in its inception. Undoubtedly, a lawful assembly may turn unlawful later on. However, having regard to the fact that the dispute arose on account of rival political views on the aspect of development work in a particular area and the role of a particular politician therein, we are of the view that, though the first informant and his son and son's friend were SSP 15/18 1 smwp 1 of 2022.doc allegedly assaulted by fist blows, leave can be granted to file an application to withdraw the prosecution arising out of C.R.No.360 of 2014.
43. In the event, the Public Prosecutor files an application for withdrawal under Section 321 of the Code, the learned Magistrate shall pass appropriate orders in accordance with law.
Petition disposed.
WRIT PETITION NO.353 OF 2023
44. The Petitioners are arraigned in C.R.No.114 of 2014 registered with Kalwa Police Station for the offences punishable under Section 447, 452, 336 of Indian Penal Code for having committed house trespass by barging into the office premises of Marathon Group on a tract of land situated at Mauje Kharegaon, Thane and pelted stones and thereby endangered the life and personal safety of others.
45. There was a dispute over the demarcation of the land of the first informant. It appears, members of the public had also laid claim over the portion of the said land. Stay was granted by the Guardian Minister to the measurement and demarcation of the disputed land. On 14 April 2014, the Petitioners and accused No.1 herein, the then Member of the Maharashtra State Legislative Assembly, committed criminal trespass into the disputed premises and caused damage to the property by pelting paverblocks and thereby endangered the life and personal safety of others.
46. In the affidavit in reply, the State contends that the Committee in its meeting SSP 16/18 1 smwp 1 of 2022.doc held on 8 February 2023, has considered the proposal and resolved to recommend to the State Government to withdraw the prosecution. A communication addressed to the Assistant Director of Public Prosecution along with the Minutes of meeting are annexed at Exhibit 1 to the affidavit in reply.
47. Prima facie, it appears that the offences arose out of the rival claims over the proprietary and possessory title to the disputed land. It seems, the members of the public had laid a claim over the portion of the disputed land. It, thus, appears that the proposal to withdraw the prosecution falls within the ambit of the policy framed by the State Government. Having regard to the nature of the allegations, circumstances of the case and the punishment which the offences may entail, in our view, leave to file application to withdraw the prosecution can be legitimately granted.
48. We are, therefore, inclined to allow the Petition to the extent of granting leave to seek withdrawal of the prosecution.
49. In the event, the Public Prosecutor files an application for withdrawal under Section 321 of the Code, the learned Magistrate shall pass appropriate orders in accordance with law.
Petition disposed.
SUO MOTU WRIT PETITION NO.1 OF 2022
50. The Writ Petition be now listed on 28 June 2024 at 3.30 p.m., for consideration of issue of further directions to the Courts dealing with the cases SSP 17/18 1 smwp 1 of 2022.doc involving former and sitting Members of Parliament and State Legislative Assembly and evaluate the progress of the trial in those cases.
( N.J.JAMADAR, J. ) ( CHIEF JUSTICE )
SSP 18/18
Signed by: S.S.Phadke
Designation: PS To Honourable Judge
Date: 08/05/2024 18:47:45