Gujarat High Court
Yatin Narendrabhai Oza vs Kishore N.Bhatt & 14 on 23 June, 2015
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
R/SCR.A/3145/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 3145 of 2015
with
SPECIAL CRIMINAL APPLICATION NO. 3455 of 2015
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YATIN NARENDRABHAI OZA....Applicant(s)
Versus
KISHORE N.BHATT & 14....Respondent(s)
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APPEARANCE: (IN SPECIAL CRIMINAL APPLICATION NO. 3145 of 2015)
MR S.V.RAJU, SENIOR ADVOCATE & MR B.B.NAIK, SENIOR ADVOCATE, WITH MR
APURVA R KAPADIA, ADVOCATE for the Applicant
MR A.D. SHAH FOR MR TARAK DAMANI, ADVOCATE for the Respondent(s) No. 1 - 5
MR ANAL S SHAH, ADVOCATE for the Respondent(s) No. 10 - 12
MR YS LAKHANI, SENIOR ADVOCATE WITH MR BHARAT JANI, ADVOCATE for the
Respondent(s) No. 13
MR YS LAKHANI, SENIOR ADVOCATE WITH MR IH SYED & MR CB UPDAHYAY,
ADVOCATE for Respondent(s) No. 14
MR LB DABHI, ADDL.PUBLIC PROSECUTOR for the Respondent(s) No. 15
NOTICE SERVED for the Respondent(s) No. 7 , 9
NOTICE UNSERVED for the Respondent(s) No. 6 , 8
DS AFF.NOT FILED (N) for the Respondent(s) No. 15
APPEARANCE: (IN SPECIAL CRIMINAL APPLICATION NO. 3455 of 2015)
MR AD SHAH FOR MR TARAK DAMANI, ADVOCATE for the Applicant(s) No. 1 - 4
MS. HINA S RAVAL, ADVOCATE for the Applicant(s) No. 1 - 4
MR LB DABHI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
MR S.V.RAJU, SENIOR ADVOCATE & MR B.B.NAIK, SENIOR ADVOCATE, WITH MR
APURVA R KAPADIA, ADVOCATE for Respondent No.2
MR ANAL S SHAH, ADVOCATE for the Respondent(s) No. 8 - 10
MR YS LAKHANI, SENIOR ADVOCATE WITH MR BHARAT JANI, ADVOCATE for the
Respondent(s) No. 11
MR YS LAKHANI, SENIOR ADVOCATE WITH MR IH SYED & MR CB UPDAHYAY,
ADVOCATE for Respondent(s) No. 12
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
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R/SCR.A/3145/2015 ORDER
Date : 23/06/2015
COMMON ORAL ORDER
1. As both the petitions have a bearing on each other, they have been argued together by the learned counsel for the respective parties.
2. Special Criminal Application No.3145 of 2015 is directed against the Notice dated 04.05.2015, issued by the learned Chief Metropolitan Magistrate, Ahmedabad, in Criminal Misc. Application No.138 of 2015, filed by Nos.1, 2, 4 and 5, whereby, the petitioner was directed to appear either personally, or through an advocate, before the Court on 22.05.2015. Criminal Misc. Application No.138 of 2015 came to be filed by respondents Nos.1, 2, 4 and 5 under Section 410 of the Code of Criminal Procedure, 1973 ("the Code") with a prayer to call/transfer Criminal Case No.205 of 2014 (filed by the petitioner) from the Court of the learned Additional Chief Metropolitan Magistrate, Court No.9, and to try and decide the same. A further prayer has been made to stay Page 2 of 26 R/SCR.A/3145/2015 ORDER the trial of Criminal Case No.205 of 2014 pending in the Court of Additional Chief Metropolitan Magistrate, Court No.9, till the final disposal of Criminal Misc. Application No.138 of 2015.
3. Special Criminal Application No.3455 of 2015 has been preferred by the petitioners who are respondents Nos.1, 2, 4 and 5 in Special Criminal Misc. Application No.3145 of 2015, challenging the order dated 11.05.2015, passed by the learned Additional Chief Metropolitan Magistrate, Court No.9, Ahmedabad, rejecting the application at Ex.94, wherein it is prayed that the Court should stay the proceedings of Criminal Case No.205 of 2014 till a decision is not rendered in Criminal Misc. Application No.138 of 2015 (transfer application) and Special Criminal Application No.3145 of 2015 filed before this Court.
4. Mr.S.V.Raju, learned Senior Advocate with Mr.Apurva R.Kapadia, learned advocate has appeared for the petitioner in Special Criminal Page 3 of 26 R/SCR.A/3145/2015 ORDER Application No.3145 of 2015 and respondent No.2 in Special Criminal Application No.3455 of 2015.
5. It is submitted by the learned Senior Counsel that the application for the transfer of the defamation case has been filed with an oblique motive, that is, to frustrate and bypass the order of this Court dated 24.02.2015, passed in Special Criminal Application No.1086 of 2015, as modified by the order dated 02.03.2015. By the said order, this Court has directed the learned Magistrate to dispose of Criminal Case No.205 of 2014, within three months from the date of receipt of the order.
6. It is submitted that the application for transfer of the proceedings has been filed by suppressing the above order passed by this Court, which reflects the oblique motive of the respondents Nos.1, 2, 4 and 5, who want the Metropolitan Magistrate to sit in judgment over the order of this Court. It is contended that the sole object and purpose of filing the application for transfer is to see that the Page 4 of 26 R/SCR.A/3145/2015 ORDER trial does not proceed, thereby frustrating and circumventing the order of this Court.
7. That, respondents Nos.1, 2, 4 and 5, were very much aware of the order of this Court, which was submitted to the trial Court by way of a Purshis, on 03.03.2015. Yet, there is not a whisper regarding the said order in the application for transfer. On the contrary, a prayer has been made for stay of the proceedings which have been directed to be finally decided by this Court, within a period of three months. This clearly shows that the intention of the said respondents is to obtain a stay order despite the order of this Court and to prolong the proceedings.
8. If the respondents are aggrieved by the order of this Court, they could have taken recourse to appropriate proceedings. However, by suppressing the fact of the passing of the order, they cannot be permitted to carry on with the application for transfer.
9. That, the evidence in the defamation case has Page 5 of 26 R/SCR.A/3145/2015 ORDER already begun and the petitioner is in the witnessbox. No prayer for transfer of the proceedings should normally be entertained at this stage. In any case, the application for adjournment is against the mandate of Section 309 of the Code, which provides that the trial shall be continued from daytoday until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary, for reasons to be recorded. In the present case, no such reasons exist.
10. That, the application under Section 410 of the Code filed by respondents Nos.1, 2, 4 and 5 is not maintainable as Section 410 of the Code speaks of the powers of transfer being conferred upon the Chief Judicial Magistrate and not the Chief Metropolitan Magistrate.
11. In any event, said application has been filed on irrelevant grounds as the petitioner is not an accused in Criminal Case No.556 of 2012, which has arisen from the FIR, being C.R.No.I5/2012, Page 6 of 26 R/SCR.A/3145/2015 ORDER for offences punishable under Sections 406, 409, 420, 465, 467, 468, 471, and 477A of the Indian Penal Code against other parties whereas Criminal Case No.205 of 2014 filed by the petitioner is for defamation. There is no connection between the two cases.
12. That, the transfer application ought not to have been made to the Chief Metropolitan Magistrate as the case is pending before the Court of Additional Chief Metropolitan Magistrate, who is not subordinate to the Chief Metropolitan Magistrate. If it had to be made at all, it could have been made to the Sessions Court.
13. Regarding the order dated 11.05.2015, passed by the Additional Chief Metropolitan Magistrate, Court No.9, below the application at Ex.94, which is the subjectmatter of challenge in Special Criminal Application No.3455 of 2015, it is submitted by the learned Senior Advocate that the order rejecting the application suffers from no legal infirmity. The Court has rightly observed that the judgment in Gafurbhai Page 7 of 26 R/SCR.A/3145/2015 ORDER Daudbhai v. State of Gujarat, reported in 1970 GLR 649, which pertains to the old provision of Section 526(8) of the Code, would not be applicable. This judgment was pressed into service by the respondents who have filed the transfer application. The mandatory nature and language in the old Section 526 has not been used in the new provisions, that is, Sections 407 and 408 of the Code. It has rightly been observed in the said order by the learned Additional Chief Metropolitan Magistrate that the High Court has issued directions to decide the defamation case within three months, which is one of the reasons for the rejection of the application.
14. On the other hand, Mr.A.D.Shah, learned advocate, has appeared for Mr.Tarak Damani, learned advocate for respondents Nos.1, 2, 4 and 5 in Special Criminal Application No.3145 of 2015 and for the petitioners in Special Criminal Application No.3455 of 2015.
15. It is submitted by him that insofar as Special Page 8 of 26 R/SCR.A/3145/2015 ORDER Criminal Application No.3145 of 2015 is concerned, this petition is not maintainable as only Notice has been issued in the application for the transfer of the proceedings, and no order has been passed. The points that the petitioner wants to raise can easily be raised before the concerned Court. The next date of hearing of the application is 20.06.2015, and as such, the petition is premature.
16. It is next submitted that the submission that Section 410 of the Code would not apply to the Chief Metropolitan Magistrate is not correct. Referring to Section 3(d) of the Code, it is submitted that any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area. Therefore, the Chief Metropolitan Magistrate possesses the power of withdrawing the case from the the file of any Magistrate subordinate to him. It is further submitted that the Additional Chief Metropolitan Magistrate is subordinate to the Chief Page 9 of 26 R/SCR.A/3145/2015 ORDER Metropolitan Magistrate, as is clear from Section 19 of the Code. Therefore, the application under Section 410 of the Code is maintainable. In support of the above contentions, reliance has been placed upon (i) Thottuvarambath Velayudhan v. Pottayil Aboobacker Haji and another reported in 1980 CR.L.J. 181, (ii) Gautam Kandu v. State of W.B. And another reported in 1995 CR.L.J. 3376 and Mahfooskhan Mehboob Sheikh v. R.J.Parakh reported in 1980 BCR 543.
17. It is contended that if the application is maintainable under Section 410 of the Code, the concerned Court should get an opportunity to determine whether the case should be tried by the same Court, or not. In support of the above contention, reliance has been placed upon P.R.Behere And Another v. Ganpatrao Shrinivasrao Chavan And Others reported in 1990 SCC (Cri) 540(I).
18. It is next submitted that the petitioners of Special Criminal Application No.3455 of 2015 Page 10 of 26 R/SCR.A/3145/2015 ORDER have turned approvers and have been granted pardon in Criminal Case No.566 of 2012. They are, therefore, bound to make a full and truthful disclosure of information. This information would be relevant in the trial of Criminal case No.205 of 2014 preferred by the petitioner of Special Criminal Application No.3145 of 2015, therefore, it is necessary that both the cases should be tried by the same Court.
19. Certain facts were revealed by way of newspaper reports which would be appreciated by the trial Court in Criminal Case No.566 of 2012 and are also required to be appreciated in Criminal Case No.205 of 2014.
20. Mr.A.D.Shah, learned advocate, has conceded the fact that this Court has passed the orders dated 24.02.2015, as modified on 02.03.2015, in Special Criminal Application No.1086 of 2015, whereby directions have been issued to the learned Magistrate to complete the trial of Criminal Case No.205 of 2014 within three months Page 11 of 26 R/SCR.A/3145/2015 ORDER from the date of receipt of the order, and these orders have not been disclosed in the application for transfer preferred by the concerned respondents in Criminal Misc. Application No.3145 of 2015 though they were aware of the orders. It is, however, submitted that no prejudice has been caused to the petitioner of Special Criminal Application No.3145 of 2015 by the nondisclosure of these orders. It is contended that it cannot be said that this constitutes a suppression of material fact. In support of this submission, reliance has been placed upon Arunima Baruah v. Union of India And Others reported in (2007)6 SCC 120
21. Mr.Y.S.Lakhani, learned Senior Advocate, with Mr.Bharat Jani and Mr.I.H.Syed, learned advocates, has appeared for respondents Nos.13 and 14 in Special Criminal Application No.3145 of 2015 and respondents Nos.11 and 12 with the same learned advocates on record, in Special Criminal Application No.3455 of 2015. He has adopted the submissions advanced by Mr.A.D.Shah, learned advocate, and has further submitted that Page 12 of 26 R/SCR.A/3145/2015 ORDER the respondents represented by him have no objection to the trial proceedings being conducted on a daytoday. They would not seek adjournment and are willing to cooperate in order to get the cases disposed of.
22. It is submitted that one Court should be assigned both the cases, that is, Criminal Case No.205 of 2014 and Criminal Case No.556 of 2012, as both the cases are interconnected, interwoven and intermingled.
23. That, all the points raised by the petitioners of Special Criminal Application No.3145 of 2015, including the maintainability of the transfer application and points of law, are issues that are still at large before the learned Chief Metropolitan Magistrate. The petition has been filed only against the issuance of Notice and is, therefore, not maintainable. The prayer of the petitioners to this Court, to deliver judgment on any issue that is open pending the proceedings, ought not be considered as the application can be finally heard and decided on Page 13 of 26 R/SCR.A/3145/2015 ORDER the next date by the Court below. It is further submitted that the petitioner of Special Criminal Application No.3145 of 2015 has preferred several civil and criminal proceedings in this Court against the issuance of notice, or adjournments granted by the lower Court. Considering the heavy burden on the courts below, it may not be possible to adhere to the directions of this Court concerning the time period within which the defamation case is to be decided.
24. Mr.L.B.Dabhi, learned Additional Public Prosecutor for the respondent - State of Gujarat in both the petitions, has submitted that the dispute is between private parties. The State Government has no actual role in the matter. Further, the State is keen to see that the orders dated 24.02.2015 and 02.03.2015, passed by this Court in Special Criminal Application No.1086 of 2015, are implemented. It is submitted that considering all these aspects, the Court may pass appropriate orders. Page 14 of 26
R/SCR.A/3145/2015 ORDER
25. In rebuttal, Mr.B.B.Naik, learned Senior Advocate with Mr.Apurva R.Kapadia, learned advocate for the petitioner in Special Criminal Application No.3145 of 2015 and respondent No.2 in Special Criminal Application No.3455 of 2015, has elaborated on the following submissions:
(i) The proceedings for transfer/ withdrawal of Criminal Case No.205 of 2014 from the Court of learned Additional Chief Metropolitan Magistrate, Court No.9, are without jurisdiction because the learned Additional Chief Metropolitan Magistrate is not subordinate to the Chief Metropolitan Magistrate. Section 410 of the Code specifically states that the Chief Judicial Magistrate may withdraw or recall any case of a Magistrate subordinate to him.
However, the Chief Judicial Magistrate is not subordinate to the Chief Metropolitan Magistrate, but both are on the same footing, both being subordinate to the Sessions Judge, as is clear from Section 19 of the Code. Sub section (2) of Section 19 empowers the High Court to define the extent of the subordination, Page 15 of 26 R/SCR.A/3145/2015 ORDER if any, of the Additional Chief Metropolitan Magistrates to the Chief Metropolitan Magistrate. In the present case, the Additional Chief Metropolitan Magistrate has not been declared to be subordinate to the Metropolitan Magistrate. The Judgment of the Bombay High Court in Mahfooskhan Mehboob Sheikh v. R.J.Parakh (supra), relied upon by the learned advocate for respondents Nos.1, 2, 4 and 5 in Special Criminal Misc. Application No.3145 of 2015 and petitioners of Special Criminal Application No.3455 of 2015, will not be applicable as it is specifically stated in the said judgment, that in view of the clear provision contained in the direction issued by that Court dated 27.08.1975, in exercise of the power conferred under subsection (2) of Section 19 of the Code, all the Additional Chief Metropolitan Magistrates of Bombay appointed under Section 17(2) of the Code, shall be subordinate to the Chief Metropolitan Magistrate, Bombay (See Paragraph 7 of the judgment).
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R/SCR.A/3145/2015 ORDER (ii) It is further submitted that in the
judgment of the Calcutta High Court, relied upon by the other side, in the case of Gautam Kandu v. State of W.B. And another (supra), it is specifically stated that the Additional Chief Metropolitan Magistrate under Section 19(1) shall be subordinate to the Sessions Judge and ever other Metropolitan Magistrate shall be subordinate to the Chief Metropolitan Magistrate, subject to the exercise of power by the High Court under subsection (2) of Section
19. This judgment would, on the contrary, come to the aid of the petitioner of Special Criminal Application No.3145 of 2015, in this regard.
(iii) It is further submitted that in view of the above, the proceedings initiated before the Chief Metropolitan Magistrate, by way of the application for transfer, are without jurisdiction and can be challenged in a writ petition. In support of this submission, reliance has been placed upon a Constitution Bench of the Supreme Court in the case of Calcutta Discount Co. Ltd. v. Income Tax Page 17 of 26 R/SCR.A/3145/2015 ORDER Officer, Companies District I Calcutta And Another reported in AIR 1961 SC 372 (Paragraphs 26 to 28), wherein it is stated that existence of an alternative remedy is not always a sufficient reason for refusing a party quick relief by a writ or order prohibiting an authority acting without jurisdiction from continuing such action.
(iv) Reliance has further been placed upon a judgment in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai And Others reported in (1998)8 SCC 1, wherein the Supreme Court has laid down certain contingencies, the existence of any one of which would entitle the High Court to exercise the power, though there may exist alternative remedy. One of the contingencies is that where the proceedings are wholly without jurisdiction, as is contended in the present case.
(v) It is submitted that in this view of the matter, the present petition (Special Criminal Application No.3145 of 2015) is maintainable and Page 18 of 26 R/SCR.A/3145/2015 ORDER the Court may grant the relief prayed for.
(vi) It is further submitted by the learned Senior Advocate that the filing of the transfer application is nothing short of an abuse of the process of the Court. In Criminal Case No.556 of 2012, pardon was granted to respondents Nos.1, 2, 4 and 5 (petitioners of Special Criminal Application No.3455 of 2015) on 04.03.2013. The complaint for defamation was filed by the present petitioner on 06.03.2014, against several accused, including those who have been granted pardon. On 10.03.2014, the learned Additional Chief Metropolitan Magistrate, Court No.9, took cognizance of the offence and issued summons to the accused, who are duly served. The defamation case is filed against the accused persons for publishing various articles, news items and advertisement in the daily newspaper "Gujarat Samachar" Ahmedabad, Vadodara and Rajkot editions, starting from 27.04.2013 to 22.02.2014.
(vii) It is submitted that this Court passed
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R/SCR.A/3145/2015 ORDER
the order dated 24.02.2015, as modified on 02.03.2015, in Special Criminal Application No.1086 of 2015, directing the trial of Criminal Case No.205 of 2014, to be completed within a period of three months from the date of receipt of a copy of the order. Respondents No.1, 2, 4 and 5 herein (petitioners of Special Criminal Application No.3455 of 2015) as well as the other respondents are very much aware of the said order but chose not to challenge it. The trial of Criminal Case No.205 of 2014 has started and the examinationinchief of the petitioner was recorded on 03.03.2015. The case was adjourned to 16.03.2015, on which date there was a strike. It was, therefore, scheduled for 11.05.2015. Respondents Nos.1, 2, 4 and 5 moved the transfer application on 04.05.2015, much after the passing of the order by the High Court. In spite of the fact that pardon was granted on 04.03.2013, they took no steps to file the application for transfer upto 04.05.2015, which shows that the said application is nothing but an abuse of the Page 20 of 26 R/SCR.A/3145/2015 ORDER process of the Court, solely designed to prolong the matter indefinitely and to frustrate the directions passed by this Court.
(viii) The sequence of events, itself, makes it apparent that the application for transfer has been filed with an oblique motive. The said application has no substance, even on merits. The petitioner is not connected with Criminal Case No.566 of 2012 in any manner.
26. Mr.A.D.Shah, learned advocate for Mr.Tarak Damani, learned advocate for respondents Nos.1, 2, 4 and 5 (petitioners of Special Criminal Application No.3455 of 2015) has submitted that, at best, the filing of the application for transfer before the Chief Metropolitan Magistrate can be said to be an irregularity which can be cured under Section 460(h) of the Code.
27. To this, Mr.B.B.Naik, learned Senior Advocate, has submitted that subsection 460(h) would be applicable only after the case is recalled and tried and not at the initial stage. Curing the Page 21 of 26 R/SCR.A/3145/2015 ORDER irregularity will not invest the Chief Judicial Magistrate with jurisdiction that is forbidden by Section 19(1) of the Code.
28. This Court has heard learned counsel for the respective parties at great length and has accorded thoughtful consideration to the respective submissions and the judgments cited by both sides.
29. The Court finds that several legal issues arise for consideration before this Court which require deeper consideration and examination. Some aspects that, primafacie, emerge for consideration are as follows:
(A) It is not denied that respondents Nos.1, 2, 4 and 5 of Special Criminal Application No.3145 of 2015 who are the petitioners of Special Criminal Application No.3455 of 2015 were very well aware of the passing of the order dated 24.02.2015, as modified by the order dated 02.03.2015, of this Court in Special Criminal Application No.1086 of 2015, whereby, the learned Magistrate has been directed to dispose Page 22 of 26 R/SCR.A/3145/2015 ORDER of the aforesaid case (Criminal Case No.205 of 2014) as expeditiously as possible, but not later than three months from the date of receipt of this order. It also not denied that the passing of this order has not been mentioned in the application for transfer, being Criminal Misc. Application No.138 of 2015 before the learned Chief Metropolitan Magistrate, Ahmedabad.
(B) The contention that the testimonies of the persons who have been granted pardon in Criminal Case No.556 of 2012 would be necessary for the decision of Criminal Case No.205 of 2014, is open to scrutiny, as it appears that the pardon was granted as far back as on 04.03.2013, and the application for transfer has been moved only on 04.05.2015, after the passing of the order by the High Court. It, therefore, is to be ascertained whether the nonmentioning of the order of the Court in the transfer application would amount to suppression of a material fact, or not.
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R/SCR.A/3145/2015 ORDER (C) The provisions of Section 410 read with
Section 19(2) of the Code would also have to be considered in depth, so as to decide whether the filing of the transfer application before the Chief Metropolitan Magistrate would amount to an abuse of the process of the Court, being without jurisdiction, in view of the submission that the Additional Chief Metropolitan Magistrate is not subordinate to Chief Metropolitan Magistrate. The aspect whether any order has been passed by the High Court under Section 19(2) of the Code regarding subordination, is also to be looked into. None has been shown to this Court at the time of hearing.
30. The above discussion would not limit the issues arising in the petition, which are required to be gone into in detail, at the time of final hearing.
31. At this stage, in the considered view of this Court, the petitioner of Special Criminal Application No.3145 of 2015 has succeeded in making out a strong primafacie case for Page 24 of 26 R/SCR.A/3145/2015 ORDER admission of the petition and grant of interim relief. Hence the following orders are passed:
32. Order in Special Criminal Application No.3145 of 2015:
Issue Rule, making it returnable on 02.11.2015.
Interim relief in terms of Paragraph 9(B) is granted.
33. Order in Special Criminal Application No.3455 of 2015:
Issue Rule, making it returnable on 02.11.2015.
In view of the order passed in Special Criminal Application No.3145 of 2015, no interim relief is called for.
34. Both the petitions shall be heard for final hearing together.
35. It is clarified that nothing contained in this order be taken to be a final opinion on any Page 25 of 26 R/SCR.A/3145/2015 ORDER aspect of the matters and would be subject to the final decision in the petitions.
(SMT. ABHILASHA KUMARI, J.)
36. Mr.A.D.Shah, learned advocate for Mr.Tarak Damani, learned advocate for respondents Nos.1, 2, 4 and 5 in Special Criminal Application No.3145 of 2015 and petitioners of Special Criminal Application No.3455 of 2015, prays for stay of the above order. This request is strongly objected to by Mr.Apurva R.Kapadia, learned advocate for the petitioner in Special Criminal Application No.3145 of 2015 and respondent No.2 of Special Criminal Application No.3455 of 2015.
37. In view of the discussion in the order, the request is declined.
(SMT. ABHILASHA KUMARI, J.) sunil Page 26 of 26