Bombay High Court
Yasmin M.Y. Valibhoy vs The State Of Maharshtra And Anr on 2 April, 2019
Author: Mridula Bhatkar
Bench: Mridula Bhatkar
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
WRIT PETITION NO. 3423 OF 2015
Yasmin M.Y.Valibhoy ...Petitioner
Versus
State of Maharashtra & Anr. ...Respondents
WITH
WRIT PETITION NO. 3726 OF 2015
Yasmin M.Y.Valibhoy ...Petitioner
Versus
State of Maharashtra & Anr. ...Respondents
WITH
WRIT PETITION NO. 952 OF 2016
The State of Maharashtra ...Petitioner
Versus
Sheetal Atulya Mafatlal ...Respondent
WITH
WRIT PETITION NO. 3902 OF 2016
Sheetal Atulya Mafatlal ...Petitioner
Versus
The State of Maharashtra ...Respondent
Mr. Bhavesh Parmar i/b. Devmani Shukla, Advocate for the petitioner in
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W.P. No. 3423 of 2015 and WP No. 3726 of 2015.
Mr. M. Vashi a/w. A.P. Steeson a/w. Ajit Singh i/b. APS Law Associates for
respondent No. 2 in WP/3423/2015 and WP/3726/2015 and respondent
No. 1 in WP/952/2016 and for the petitioner in WP/3902/2016.
Mr. A.R. Patil, APP for the respondent/State in WP/3423/2015,
WP/3726/2015 and WP/3902/2016 and for petitioner in WP/952/2016.
CORAM : MRS. MRIDULA BHATKAR, J.
DATE : 2nd April, 2019 P.C.:
1. Rule. Rule made returnable forthwith. By consent, all the Writ Petitions are heard finally and decided at the stage of admission, as the issue involved in all these Petitions is one and the same. Parties are addressed by their names to avoid confusion, as all petitions filed by the parties are decided together by this common order.
2. Writ Petition No. 3423 of 2015 is filed by the petitioner -Yasmin M.Y.Valibhoy, who was accused in Crime No. 277 of 2012 registered on 22.11.2012 with Gamdevi Police Station by Sheetal Mafatlal. By this Petition, the petitioner prays that the order dated 17.08.2015 passed by the learned Additional Sessions Judge, Greater Bombay, rejecting her prayer of intervention in Criminal Misc. Application No. 1838 of 2015 in Criminal Revision Application No. 802 of 2015 filed by Sheetal Atulya Mafatlal be 2/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: quashed and set aside.
3. Writ Petition No. 3726 of 2015 is filed by the petitioner-Yasmin M.Y.Valibhoy. By this petition, the petitioner prays that the order dated 04.09.2015 passed by the learned Additional Sessions Judge, Gr. Bombay where Criminal Revision Application No. 802 of 2015 filed by the original complainant- Sheetal Atulya Mafatlal was allowed and the order of the learned Metropolitan Magistrate, 40th Court, granting 'B' summary though was confirmed, the order of prosecution was set aside be quashed and set aside.
4. Writ Petition No. 952 of 2016 is filed by the petitioner- State. By this petition, the petitioner-State prays that the order dated 04.09.2015 passed by the learned Additional Sessions Judge, Gr. Bombay where Criminal Revision Application No. 802 of 2015 filed by the original complainant-
Sheetal Atulya Mafatlal was allowed and the order of the learned Metropolitan Magistrate, 40th Court, granting 'B' summary though was confirmed, the order of prosecution was set aside be quashed and set aside.
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5. Writ Petition No. 3902 of 2016 is filed by the original complainant- Sheetal Atulya Mafatlal. By this petition, the petitioner prays that the order dated 08.05.2015 passed by the learned Addl. Chief Metropolitan Magistrate, 37th Court, Esplanade, Mumbai in Criminal Case No. 44/M/2014 and also the order dated 04.09.2015 passed by the learned Additional Sessions Judge, Gr. Bombay in Criminal Revision Application No. 802 of 2015 be quashed and set aside.
6. The petitioner-Sheetal Mafatlal has taken away 48 paintings and one artechair on 11th July, 2011 from the house of Mafatlal family without informing anyone and therefore, her step daughter has lodged complaint with Gamdevi Police station. The Metropolitan Magistrate, Girgaum gave directions under section 156(3) of Cr.P.C. and thereafter the offence was registered at M.E.C.R. No. 11 of 2011 punishable under sections 380, 405, 406, 411, 414 r/w. 120B on 17th August, 2011. During the investigation, it was found that petitioner-Sheetal Mafatlal has kept 31 paintings in the flat of her friend Yasmin Valibhoy, who is a petitioner in one of the Writ Petitions. She has kept 31 paintings in her two flats, so police carried out two panchnamas on 31st August, 2011 and 9th September, 2011. The police gave directions to Yasmin Valibhoy not to shift these paintings 4/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: without permission. The Civil and Criminal litigations were going on between the family members of Mafatlal family. In one of the Writ Petitions, the family entered into Consent terms wherein the custody of 31 paintings was given to Sheetal Mafatlal and the proceedings against Sheetal Mafatlal was quashed and set aside and the learned Metropolitan Magistrate, 40th Court, Girgaum by his order dated 24 th September, 2012 directed the police to handover 31 paintings to Sheetal Mafatlal. On 4 th October, 2012 when the police along with petitioner Sheetal Mafatlal went to the house of Yasmin Valibhoy, at that time, petitioner-Sheetal Mafatlal made allegations that all the 31 original paintings were replaced by the photocopy and those 31 paintings are duplicate. Therefore, the police officer seized all those duplicate paintings under seizure panchnama. The petitioner-Sheetal Mafatlal thereafter on 22nd November, 2012 lodged FIR against Yasmin at Gamdevi Police Station and the offence was registered at C.R. No. 277 of 2012 under section 406 r/w. 34 of Indian Penal Code. The police started investigation. They contacted number of persons so also expert artists and visited many places. On 19 th January, 2014, the original paintings were finally procured by the Crime Branch Police from room No. 5/D Prabhat Cooperative Soiety, Princess Street. The said room has been taken on rent from 10th October, 2011 by Sheetal Mafatlal from 5/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: landlord Kirti N. Kambatta. They came across the fact that the 31 paintings which were kept and found in the flats of petitioner-Yasmin Valibhoy were duplicate. The petitioner-Sheetal Mafatlal has kept original paintings in her custody and herself has prepared duplicate paintings with the help of her friends Areef Patel and Farukh Wadia and also with the help of her Manager Manoj Shah.
7. The police, after completion of the investigation, arrived at the conclusion that the FIR lodged by petitioner-Sheetal Mafatlal in C.R. No. 277 of 2012 is false, therefore, they filed B-Summary. In the B-Summary, the police also sought permission of the Court to take action against Sheetal Mafatlal in accordance with law. The learned Magistrate accepted the report of the police as a whole and though confirmed B-Summary, also ordered prosecution against the petitioner as per law and disposed of the said Summary by order dated 8th May, 2015. The said order was challenged by Sheetal Mafatlal in Revision Application No. 802 of 2015. The learned Additional Sessions Judge by order dated 4 th September, 2015, though confirmed the order of B-Summary, he set aside the order of launching prosecution against the petitioner-Sheetal Mafatlal . The said order of the learned Additional Sessions Judge was challenged by filing 6/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: three Writ Petitions.
8. The learned APP Mr. Patil drew my attention to report of B-Summary which was filed by P.I. of Crime Branch. The said report was filed on 20 th and 21st August, 2014. Learned APP argued that the police during the course of investigation has recorded statements of nearly 23 witnesses. They have also recorded statements of Vikramsingh Bawaand Sweta Walavalkar, the photographers, who actually took photographs of original 31 paintings. He pointed out the statement of Rasiklal, who is the owner of "Photokina", the studio/shop. He relied on the statement of Manoj Shah, the manager of Sheetal Mafatlal and submitted that the report is very detailed and self-explanatory. He has submitted that the learned Sessions Judge ought to have taken into account all these facts which were revealed in the investigation of Gamdevi Police Station and Crime Branch and should not have set aside the order of learned Magistrate of launching prosecution against petitioner-Sheetal Mafatlal, especially when the offence was already registered against Sheetal Mafatlal.
9. Per contra, the learned counsel Mr. Vashi while defending the order passed by the Additional Sessions Judge in Criminal Revision No. 802 of 7/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: 2015 has submitted that the order of learned Magistrate is factually erroneous. The learned Magistrate has missed the real controversy and has passed the order of prosecution. He submitted that the learned Additional Sessions Judge has rightly corrected and modified the order passed by the learned Magistrate. He relied mainly on paragraphs 13 and 14 of the order of the learned Sessions Judge. He argued that the learned Magistrate has wrongly mentioned about the movements of the paintings and therefore, the learned Sessions Judge gave a correct finding that duplicate paintings were mistakenly shifted to the house of Yasmin Valibhoy and Farooque by the staff of the petitioner. He alternatively submitted that now the things are settled in Mafatlal family and the original accused Yasmin Valibhoy is also free from the prosecution, due to grant of B-Summary. This Court may saddle cost on the party and put end to the litigation.
10. I have gone through both the orders passed by the learned Magistrate and learned Additional Sessions Judge. The detailed report of B-Summary submitted by the Crime Branch. At the outset, I record that the order passed by the learned Additional Chief Metropolitan Magistrate and reasoning given by him is correct. The observations made by the 8/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: learned Sessions Judge in paragraphs 14 and 16 is completely illegal. The learned Sessions Judge has failed to apply his mind to the facts that the police while filing the B-Summary has given the gist of the statements of 22 witnesses. This gist gives entire picture how the duplicate paintings were prepared and replaced and the original paintings were kept under the command of Sheetal Mafatlal. Thus, it ex-facie discloses that she has thorough knowledge of what she was doing and where the original paintings are and yet she has registered a false FIR against Yasmin Valibhoy. FIR was lodged on 22 nd November, 2012 and nearly after three years, i.e., 4th September, 2015 B-Summary was confirmed and accepted and prosecution was closed against Yasmin Valibhoy. I do not find any good reason why the police should not launch prosecution against the first informant as provided under the law. The submissions of Mr. Vashi that alternatively cost can be saddled against the informant and this Court can put an end to the prosecution, cannot be accepted. It is to be noted that the police has already launched prosecution against Sheetal Mafatlal by registering offence at C.R. No. 142 of 2015 on 2 nd July, 2015 under sections 465, 468, 471, 420, 182 and 211 of Indian Penal Code. In this case, the Gamdevi Police Station and Crime Branch both were engaged in the investigation for three years. The Court time is unnecessarily taken in 9/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 ::: this prosecution and thus, in this case, public time and machinery cannot be compensated in terms of money. The law and order cannot be substituted for money, hence the legal action to proceed. The trial Court finally if holds the petitioner lady guilty, then the trial Court is always at liberty to saddle cost additionally and that is left to the trial Court.
11. In view of this, rule is made absolute that the order dated 4 th September, 2015 passed by the learned Additional Sessions Judge of quashing and setting aside the order of prosecution against the petitioner is hereby set aside and the order passed by the learned Magistrate, 40 th Court is hereby confirmed. Writ Petition No. 952 of 2016 filed by the State is allowed.
12. The petitioner-Sheetal Mafatlal has filed Writ Petition No. 3902 of 2016 where she has asked for setting aside the order of B-Summary. Writ Petition is rejected with costs. The petitioner is directed to deposit Rs.5,00,000/- (five lakhs) in the Police Welfare Fund and Rs.2,00,000/- (two lakhs) in the Legal Aid Services Authority in Manodhairya Scheme. The said costs is to be deposited within two weeks, i.e., on or before 25 th April, 2019.
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13. The petitioner-Yasmin Valibhoy has filed the Intervention Application, however, the said Intervention Application was rejected by the learned Additional Sessions Judge by order dated 17 th August, 2015 on the ground that she has no locus and the said report is in favour of the intervenor and State is a proper party. The said order is challenged by filing Writ Petition in the High Court. However, no order is required in the said Writ Petition, as this Court has allowed the Writ Petition filed by the State and has rejected the Petition filed by the petitioner-Sheetal Mafatlal. Writ Petition nos. 3423 of 2015 and 3726 of 2015 are disposed of accordingly.
14. The learned counsel for the petitioner-Sheetal Mafatlal orally prays for stay of operation of this order.
15. The police have already filed the criminal case against the petitioner- Sheetal Mafatlal, so also considering the wastage of time of the Court and the nature of the accusations, I am not inclined to stay this order.
(MRIDULA BHATKAR, J.) 11/11 ::: Uploaded on - 02/04/2019 ::: Downloaded on - 03/04/2019 04:43:57 :::