Sunday, 11 September 2016

Whether court can set aside order of discharge of accused on application of third party?

It is also pertinent to note that the respondent no.1 was discharged by
the order dated 30.12.2014. The CBI had not challenged the said order.
The aggrieved person, Rubabuddin had also not filed any revision
application within the period of limitation. Despite which the applicant,

who claims to be a socially responsible citizen, had not taken any steps to
challenge the said order. It is to be noted that one Shri Rajesh Kamble, who
was also not a party to the proceedings had opposed the withdrawal
application filed by Rubabuddin Shaikh, in his capacity of being "an alert
citizen". The said application was dismissed vide order dated 21.10.2015.
The Applicant has shown interest in this matter only after the dismissal of
the application filed by Rajesh Kamble.
42. It is also pertinent to note that several other accused in the said crime
have also been discharged, but the applicant has not challenged the said
orders, but has sought to challenge only the order whereby the present
respondent no.1 has been discharged. The social interest and responsibility
proclaimed by the Applicant is thus restricted only to the relief sought
against the Respondent No.1 and does not even extend to other accused in
the said case much less having larger implications beyond the case. This
is a predominant distinguishing feature in the relief sought in the present
case vis- a-vis a relief in Subramanian Swami (supra). The above facts
coupled with the fact that applicant has shown sudden interest in matter
after a period of over 10 years gives an indication of lack of bonafides.

Needless to state that the criminal law cannot be permitted to be used as an
instruments to wreck vengeance due to personal or political grudge or to
spite the accused for any other oblique purpose.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1248 OF 2015
Harsh Mander Har Mander Singh

v/s.
Amit Anilchandra Shah

 CORAM : SMT. ANUJA PRABHUDESSAI, J.

 PRONOUNCED ON : MARCH 11, 2016.


1. By this application filed under Section 482 of Cr.P.C. the applicant
has prayed for quashing and setting aside the order dated 30.12.2014,
discharging the respondent no.1, one of the accused in Sessions Cases Nos.
177 of 2013, 178 of 2013, 577 of 2013 and 312 of 2014 pending in the
Sessions Court, Gr. Bombay at Mumbai. The applicant has also sought to
direct an independent agency to investigate the circumstances under which
Rubabuddin Shaikh, the applicant in Criminal Revision Application (St.)
No. 413 of 2015, has approached this Court for withdrawal of the said
revision application and the application for condonation of delay.
2. The brief facts necessary to decide this application are as under:
. The respondent no.1 had filed a discharge application in the
aforestated sessions cases. By order dated 30.12.2014, the learned
Sessions Judge, Gr. Bombay allowed the discharge application and
consequently discharged him of the offences u/s. 120B, 364, 365, 368, 341,
342, 384, 302, 218 rw/. 201 of IPC. The said order was not challenged by
the CBI, but was challenged by Rubabuddin, the brother of the deceased
Shorabuddin, by filing Criminal Revision Application No.413 of 2015,

along with an application for condonation of delay being Cri. Application
No.355 of 2015.
3. By application dated 5.10.2015, said Rubabuddin had sought to
withdraw the said revision application as well as the application for
condonation of delay. The said application was allowed by this court by
order dated 23.11.2015. Accordingly, the application for condonation of
delay was disposed of as withdrawn. Consequently, the revision application
was also disposed of.
4. The applicant had filed this application during the pendency of the
withdrawal application dated 5.10.2015, filed by Rubabuddin Shaikh. The
applicant claims that the crime being a gross case of custodial murder has
caused violence, trauma, fear and loss not only to the interested parties, but
also to the entire law abiding society. The applicant claims that though
there is sufficient prima facie material to proceed against the respondent
no.1, the CBI did not challenge the discharge order which has resulted in
abuse of process of law and gross failure of justice. The applicant claims
that Rubabuddin, the brother of the deceased Sorabuddin, who had

challenged the said order had sought to withdraw the revision application as
well as the application for condonation of delay, and as such it was left to
the concerned citizens to pursue the matter in order to ensure justice in the
larger interest of the society. The applicant claims that withdrawal of the
revision application by Rubabuddin appears to be suspicious, under threats,
inducement and promise. The applicant, who claims to be a socially
responsible citizen has thus filed this application for the reliefs as stated
above.
5. At the outset it may be mentioned that Mr. Raju, the learned Sr.
Counsel for the respondent no.1 has submitted that the application is liable
to be dismissed for suppression of material fact and for approaching the
court with unclean hands. Elaborating this submission, the learned Counsel
for the applicant has submitted that this court by order dated 21.10.2015
had dismissed a similar application filed by one Rajesh Kamble and that the
applicant had suppressed the said material fact. Relying upon the decision
Ram Naran Vs. Ramesh Narang 1995 (2) SCC 513, the learned senior
counsel for the Applicant has submitted that a litigant cannot play hide and
seek with the court and must approach the court candidly and with clean

hands.
6. Whereas, the learned Sr. Counsel Shri Grover has submitted that the
relief sought by Shri Kamble was entirely different from the relief sought
by the applicant in this case. He has submitted that the order passed in Cri.
Application No.420 of 2015 is not relevant for deciding this application.
7. It is to be noted that by application dated 5.10.2015 Rubabuddin
Shaikh, the brother of the deceased Sorabuddin had sought leave to
withdraw the said revision application as well as the application for
condonation of delay. During the pendency of this application one Shri
Rajesh M. Kamble, who claimed to be an alert citizen, had filed an
application being Criminal Application No.420 of 2015, opposing
withdrawal of the said application by Rubabuddin Shaikh. The said
application was dismissed by this court on merits by order dated
21.10.2015, interalia holding that the applicant Rajesh Kamble was neither
a victim nor an aggrieved person. It was further held that the said applicant
had not demonstrated that his legal rights were impaired or that any harm,
injury was caused him or likely to be caused due to withdrawal of the

Application. It was therefore, held that the Intervenor had no legal right to
intervene in the proceedings, and accordingly the application filed by
Rajesh Kamble was dismissed.
8. It is true that the applicant had not referred to this order in the
present application. However, the same by itself would not be a ground to
reject the application, moreover when the applicant has not obtained any
favourable order by suppressing the said order dated 21.10.2015. The
decisions relied upon by the respondent no.1 are therefore distinguishable
and not applicable to the facts of the case. Consequently, the application
cannot be dismissed on the ground of suppression of material facts.
9. Shri S.V. Raju, the learned Sr. Counsel for the respondent no.1 has
also raised the issue of maintainability of this application as well as the
locus standi of the applicant in filing the application under Section 482 of
Cr.P.C. The learned Senior Counsel for the applicant as well as the learned
Sr. Counsel for the respondent no.1 have stated that since the issue of
maintainability goes to the root of the matter, the same should be decided at
the threshold. Hence both the learned Senior Counsels were heard on these

preliminary objections raised by the learned Sr. Counsel for the respondent
no.1.
10. Shri Grover, the learned Sr. Counsel for the applicant has submitted
that the learned Sessions Judge has discharged the respondent no.1 by order
dated 30.12.2014. The CBI had not challenged the discharge order, hence
Rubabuddin, the brother of the deceased was compelled to file the revision
application alongwith an application for condonation of delay. The learned
Sr. Counsel has submitted that since Rubabuddin, the aggrieved party had
already filed a revision application, it was not necessary for the Applicant to
challenge the discharge order. He has submitted that filing of withdrawal
application by the aggrieved party has necessitated the applicant, a
concerned citizen, to file the present application.
11. The learned Senior Counsel for the applicant has further submitted
that the opening words “Nothing in this Code ...” in section 482 of the
Cr.P.C. is a non-obstante clause and it has overriding effect over other
provisions including Section 397(2) of Cr.P.C. Mr. Grover, the learned
senior counsel therefore, contends that even when the order is hit by

Section 397(2) Cr.P.C. the inherent powers under Section 482 Cr.P.C. are
wide and can be exercised to prevent abuse of process of court or to secure
ends of justice. In support of this contention, he has relied upon the
judgments of the Apex Court in Madhu Limaye v. State of Maharashtra
(1977) 4 SCC 551, Dharival Tobacco Products Ltd & Ors. V. State of
Maharashtra (2009) 2SCC 370. Raajkapoor vs. State (1980) 1 SCC 43.
12. On the issue of locus standi, the learned Counsel for the applicant has
submitted that the concept of locus standi is foreign to criminal
jurisprudence. Relying upon the judgment of the Apex Court in
A.R.Antulay v. Srinivas Nayak (1984) 2 SCC 500, Subramanian Swamy
v. Manmohan Singh (2012) 3 SCC 64, the learned Senior Counsel Shri
Grover has submitted that any one can set the criminal law in motion and
this principal remains intact unless contra indicated by statutory provision.
The learned Senior Counsel has urged that when the crime is against the
society it is the primary duty of the State to initiate prosecution and
continue the same. Relying upon the view taken by the Apex Court in
Sheonandan Paswan v. State of Bhiar (1987) 1 SCC 288 (Justice Bhagwat
& Justice Oza) which has been termed as minority judgment, he has

submitted that the citizen who finds that the offence against society is being
wrongly withdrawn, is entitled to oppose the withdrawal. The learned
Senior Counsel for the applicant therefore submits that the application is
maintainable.
13. Mr. Raju, the learned Sr. Counsel for the respondent no.1 has further
submitted that the order of discharge is not an interlocutory order and that
the order is revisable under section 397 of Cr.P.C. Relying upon the
decision of the Apex Court in Mohit @ Sonu v. State of U.P. (2013) 7 SCC
789, the learned Sr. Counsel has submitted that the powers under Section
482 of Cr.P.C. cannot be resorted when there is specific provision in the
code for the redressal of grievance of the aggrieved party.
14. The learned Sr. Counsel for the respondent no.1 has submitted that
though the criminal law can be set in motion by any person, the criminal
law does not recognize the right of a third party or a stranger to the
proceedings to participate in further proceedings and that this right is
conferred only to the State and in some cases to the victims or to the
aggrieved persons. He has placed reliance on the decision of the Apex

Court in the case of Subramanium Swamy v. Raju (2013) 10 SCC 465, in
Karanjit Singh v. Union of India (1992) 4 SCC 666, Sulochana Devi v.
District Magistrate 1993 (OLR) 47. The learned counsel for the
respondent no.1 has further submitted that the decision in Shivanandan
Paswan (supra) is a minority view of the Bench and cannot be relied upon,
and to fortify this contention he has relied upon the decision of the Delhi
high Court in Peoples Union for Civil Liberties vs. Central Bureau of
Investigation [1997 [(41) DRJ].
15. The learned Sr. Counsel for the respondent no.1 has submitted that
Rubabuddin had filed his affidavit stating that he did not want to proceed
with the matter. He was given ample opportunity and after being satisfied
that his request for withdrawal was voluntary, he was allowed to withdraw
the application for condonation of delay. Under the circumstances,
granting the relief as sought in prayer clause (b) would tantamount to
enquiring into the proceeding conducted by this court, which is
impermissible in law. The learned counsel for the respondent no.1 has
further stated that the High Court cannot invoke powers under section 482
of Cr.P.C. to direct a particular investigating agency to investigate a case or

to follow a particular procedure. He has submitted that granting such relief
as prayed for in prayer clause(b) would be contrary to the ratio of the
Honourable Apex Court in State of Punjab v. Dalvinder Pal Singh Bhullar
[(2001) 14 SCC 270].
16. The learned counsel for the respondent no.1 has further submitted
that the application lacks bonafides and is filed with ulterior motive and this
is evident from the fact that though the alleged incident had occurred in the
year 2005, the applicant has shown interest in the proceedings only in the
year 2015 and that too after rejection of Criminal Application No.420 of
2015 filed by one Rajesh Kamble in this very matter. Furthermore, several
other accused have been discharged, but the applicant has targeted only the
respondent no.1, which fact clearly shows malafides on the part of the
applicant.
17. Mr. Raju, the learned Sr. Counsel for the respondent no.1 has further
submitted that the applicant was a member of the National Advisor
Committee appointed by the rival political party, which fact has been
concealed in the application, and the said fact coupled with the fact that the

applicant has shown interest in the matter after a period of 10 years from
the date of the alleged incident shows that the applicant lacks bonafides and
that the application is politically motivated.
18. The learned Addl. PP Shri Singh and Shri Shinde for the CBI have
also submitted that the applicant is not an aggrieved person and that
Rubabuddin, who was the aggrieved person was permitted to withdraw the
revision application, and hence the present application is not maintainable.
Relying upon the decision of the Apex Court in Abdul Basit alias Raju and
Others vs. Mohd. Abdul Kadir Chaudhary & Anr. (2014) 10 SCC 754,
and Dalip Singh vs. State of U.P. & Ors.(2010) 2 SCC 114, learned Senior
Counsel Shri Anil Singh has submitted that the application under Section
482 is not maintainable at the behest of the applicant who is totally stranger
to the proceeding.
19. I have perused the records and considered the submissions advanced
by the learned counsels for the respective parties. The respondent no.1 was
one of the accused in the aforestated sessions cases pending before the
Session Court, Gr. Bombay. The allegations against the respondent no.1 in

brief were that, during the period 2004 to 2006 when he was the Minister of
State (Home), State of Gujarat, he and some of the police officers of
Gujarat and Rajasthan entered into a criminal conspiracy, to nab and kill
one Sorabuddin. It is alleged that said Sohrabuddin was killed on
26.11.2005 in a fake encounter at the instance of the respondent no.1.
Some days later, Kausarbi, the wife of Sorabuddin, was also killed and her
body was burnt and disposed of in a river near village near Illol. About a
year later, on 27.12.2006, Tulsiram Prajapati was also allegedly killed in a
fake encounter.
20. The anti-terrorism squad of Gujrat Police had registered a criminal
case vide Crime No. 15 of 2005 against Sohrabuddin under Section 120B,
121, 121A, 122, 123, 307, 186, 254 of IPC r/w. 25(1) of the Arms Act.
After investigation, a brief summary report was filed before the learned
Metropolitan Magistrate at Ahmedabad. By order dated 1.2.2007 the said
crime was closed as abated.
21. Rubabuddin, the brother of Sorabuddin had written a letter to the
Honourable the Chief Justice of India to direct an enquiry in the matter of

his brother’s death and disappearance of his sister-in-law. The Honourable
Supreme Court of India had directed the Director General of Police, Gujarat
to inquire into the matter and pursuant to the directions, initially an enquiry
was conducted and thereafter the C.I.D. Crime, Gujarat investigated the
crime and had filed a charge-sheet against 13 accused persons. Not being
satisfied with the action, Rubabuddin filed a Writ petition before the Apex
Court with a request to direct the C.B.I. to investigate the crime afresh. By
order dated 12.1.2010 in Writ Petition No.6 of 2007, the Honourable
Supreme Court directed the C.B.I. to investigate into the matter and
pursuant to the said directions, CBI authorities took over the investigation.
In the course of the investigation, the CBI recorded statements of several
witnesses. After completing the investigation, one main charge sheet and 3
supplementary chargesheets were filed before the Addl. Chief Metropolitan
Magistrate, Mirzapur, Ahmedabad. By order dated 22.9.2012 the
Honourable Supreme Court transferred the case to Mumbai.
22. The respondent no.1 had filed a discharge application under section
227 of Cr.P.C. The same came to be allowed by order dated 30.12.2014.
The CBI did not challenge the said order. Nonetheless, Rubabuddin

Shaikh, the brother of the deceased Sorabuddin filed Criminal Revision
Application No.413 of 2015 challenging the order of discharge of the
respondent no.1. Filing of the application dated 5.10.2005 by Rubabuddin,
seeking leave to withdraw the said revision application along with
Criminal Application No.355 of 2015 for condonation of delay, has led to
filing of the present application under Section 482 of Cr.P.C.
23. Relying upon the decision of the Apex Court in Dhariwal (supra) the
learned Sr. Counsel Shri Grover has submitted that availability of an
alternative remedy of filing the revision appliCation is not a bar for
invoking jurisdiction under Section 482 of Cr.P.C. It may be mentioned
here that in the case of Dhariwal the powers under Section 482 of Cr.P.C.
were invoked to challenge the summons issued under Prevention of Food
Adulteration Act/Rule. The said application was not entertained in view of
availability of alternative remedy of filing a revision application under
Section 397 of the Code. While setting aside the said order, the Apex
Court held that :
 "Undisputedly, issuance of summons is not an interlocutory
order within the meaning of Section 397 of the Code. This
court in a large number of decisions beginning from
R.P.Kapoor vs. State of Punjab, to Som Mittal v. Govt. of

Karnataka has laid down the criterion for entertaining an
application under Section 482. Only because a revision
petition is maintainable, the same by itself, in our considered
opinion, wuld not constitute a bar for entertaining an
application under Section 482 of the Code" .
24. Section 482 Cr.P.C. spells out the inherent powers of the High Court
as under :
"Sec. 482. Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such orders as
may be necessary to give effect to any order this Code, or to
prevent abuse of the process of any court or otherwise to
secure the ends of justice."
25. The scope of section 482 vis-a-vis section 397(2) of the Code has
been elaborately explained by a three Judge Bench of the Apex Court in
Madhu Limaye vs. State of Maharashtra (1977) 4 SCC 551 as under:
“8...At the outset the following principles may be noticed in
relation to the exercise of the inherent power of the High
Court which have been followed ordinarily and generally,
almost invariably, barring a few exceptions :-
(1) That the power is not to be resorted to if there is a
specific provision in the Code for the redress of the grievance
of the aggrieved party ;
(2) That it should be exercised very sparingly to prevent
abuse of process of any Court or otherwise to secure the ends
of justice;
(3) That it should not be exercised as against the express bar
of law engrafted in any other provision of the Code.

10... On a plain reading of section 482, however, it would
follow that nothing in the Code, which would include
subsection (2) of section 397 also, "shall be deemed to limit
or affect the inherent powers of the High Court". But, if we
were to say that the 754 said bar is not to operate in the
exercise of the inherent power at all, it will be setting at
naught one of the limitations imposed upon the exercise of
the revisional powers. In such a situation, what is-the
harmonious way out ? In our opinion, a happy solution of
this problem would be to say that the bar provided in subsection
(2) of section 397 operates only in exercise of the
revisional power of the High Court, meaning thereby that the
High Court will have no power of revision in relation to any
interlocutory order. Then in accordance with one of the other
principles enunciated above, the inherent power will come
into play, there being no other provision in the Code for the
redress of the grievance of the aggrieved party. But then, if
the order assailed is purely of an interlocutory character
which could be corrected in exercise of the revisional power
of the High Court under the 1898 Code. the High Court will
refuse to exercise its inherent power. But in case the
impugned order clearly brings about a situation which is an
abuse of the process of the Court or for the purpose of
securing the ends of justice interference by the High Court is
absolutely necessary, then nothing contained in section
397(2) can limit or affect the exercise of the inherent power
by the High Court. But such cases would be few and far
between. The High Court must exercise the inherent power
very sparingly. One such case would be the desirability of the
quashing of, a criminal proceeding initiated illegally,
vexatiously or as being without jurisdiction...."
26. In Gian Singh v. State of Punjab (2012) 10 SCC 303, the question
before the Apex Court was whether the inherent power of the High Court

could be invoked for quashing the criminal proceedings against an offender
who had settled the dispute with the victim; in respect of the crime which
was not compoundable under section 320 of the Code. A three Judge
Bench of the Apex Court after analysing the previous decisions has
reiterated as under :
"53. Section 482 of the Code, as its very language suggests,
saves the inherent power of the High Court which it has by
virtue of it being a superior court to prevent abuse of the
process of any court or otherwise to secure the ends of justice.
It begins with the words, ‘nothing in this Code’ which means
that the provision is an overriding provision. These words
leave no manner of doubt that none of the provisions of the
Code limits or restricts the inherent power. The guideline for
exercise of such power is provided in Section 482 itself i.e., to
prevent abuse of the process of any court or otherwise to
secure the ends of justice. As has been repeatedly stated that
Section 482 confers no new powers on High Court; it merely
safeguards existing inherent powers possessed by High Court
necessary to prevent abuse of the process of any Court or to
secure the ends of justice. It is equally well settled that the
power is not to be resorted to if there is specific provision in
the Code for the redress of the grievance of an aggrieved party.
It should be exercised very sparingly and it should not be
exercised as against the express bar of law engrafted in any
other provision of the Code.
54. In different situations, the inherent power may be
exercised in different ways to achieve its ultimate objective.
Formation of opinion by the High Court before it exercises
inherent power under Section 482 on either of the twin
objectives, (i) to prevent abuse of the process of any court or
(ii) to secure the ends of justice, is a sine qua non.
55. In the very nature of its constitution, it is the judicial
obligation of the High Court to undo a wrong in course of

administration of justice or to prevent continuation of
unnecessary judicial process. This is founded on the legal
maxim quando lex aliquid alicui concedit, conceditur et id
sine qua res ipsa esse non potest. The full import of which is
whenever anything is authorised, and especially if, as a
matter of duty, required to be done by law, it is found
impossible to do that thing unless something else not
authorised in express terms be also done, may also be done,
then that something else will be supplied by necessary
intendment. Ex debito justitiae is inbuilt in such exercise; the
whole idea is to do real, complete and substantial justice for
which it exists. The power possessed by the High Court under
Section 482 of the Code is of wide amplitude but requires
exercise with great caution and circumspection.
56. It needs no emphasis that exercise of inherent power by
the High Court would entirely depend on the facts and
circumstances of each case. It is neither permissible nor
proper for the court to provide a straitjacket formula
regulating the exercise of inherent powers under Section 482.
No precise and inflexible guidelines can also be provided. "
27. In Mohit @ Sonu & Anr. v. State of Uttar Pradesh & Anr. (2013) 7
SCC 789 while considering the question whether the application under
Section 482 of Cr.P.C. challenging the order of the Sessions Court passed
under Section 319 of Cr.P.C. was maintainable, the Apex Court has held as
under :
" So far as the inherent power of the High Court as
contained in Section 482 of Cr.P.C. is concerned, the law in
this regard is set at rest by this Court in a catena of decisions.
However, we would like to reiterate that when an order, not
interlocutory in nature, can be assailed in the High Court in

revisional jurisdiction, then there should be a bar in invoking
the inherent jurisdiction of the High Court. In other words,
inherent power of the Court can be exercised when there is no
remedy provided in the Code of Criminal Procedure for
redressal of the grievance. It is well settled that the inherent
power of the Court can ordinarily be exercised when there is
no express provision in the code under which order impugned
can be challenged."
27. In the instant case, the applicant has invoked the power under Section
482 of Cr.P.C. to challenge the order of discharge dated 30.12.2014
whereby the learned Sessions Judge Gr. Bombay has discharged the
respondent no.1 of the offences under Sections 120B, 364, 365, 368, 341,
342, 384, 302, 218 rw/. 201 of IPC. It is not in dispute that the said order
is not an interlocutory order and could be challenged by invoking the
revisional jurisdiction of the High Court under Section 397 /401 of Cr.P.C.
Hence, in the light of the law laid down by a three Judge Bench of the Apex
Court in the case of Madhu Limaye and which has been followed in Gian
Singh and Mohit (supra), the powers under Section 482 cannot be resorted
to in view of the said specific provision of the code for the redressal of the
grievance particularly when the aggrieved party had already assailed the
said order in revisional jurisdiction of this Court.

28. The Applicant had sought to invoke the power under section 482 of
Cr.P.C. mainly on the ground that the Respondent No.1 through powerful
network of forces at his command has prevailed upon the Rubabuddin
Shaikh to withdraw the revision application. The Applicant has alleged that
the withdrawal appears to be suspicious, under threat, inducement and
promise.
29. It is no doubt true that the powers under sections 482 and 483
of the Cr.P.C. are wide. However, it is well settled that these powers should
be exercised sparingly to prevent abuse of process of any court or otherwise
to secure the ends of justice or to prevent misuse of judicial mechanism or
miscarriage of justice. In the instant case, Rubabuddin , the brother of the
deceased who is an aggrieved party and at whose instance the crime was
registered had by application dated 5.10.2015 which was supported by his
affidavit, sought leave to withdraw the revision application as well the
application for condonation of delay. Since said Rubabuddin was not
represented by an advocate, no order was passed on the said application on
the said date. On 6.10.2015 said Rubabuddin had remained present
alongwith his counsel and had once again sought leave to withdraw the said

applications. The counsel for Rubabuddin had also stated that Rubabuddin
had expressed his desire to withdraw the revision application. Rubabuddin
who was present in the court, upon being questioned, had reiterated that he
was seeking to withdraw the application voluntarily and that he was not
under pressure, threat or coercion from any person to withdraw the said
applications. Despite the said statement, no order was passed on the
withdrawal application as it was felt necessary to ascertain whether the
withdrawal was voluntary. Once again on 20.10.2015 Rubabuddin
remained present before the court along with his counsel and reiterated his
desire to withdraw the said applications. He was heard in person in the
chamber to ascertain whether his decision to withdraw the application was
voluntary. Since said Rubabuddin did not appear to be in a physically fit
condition, further time of one month was granted. The records reveal that
on 23.11.2015 said Rubabuddin had remained present before the court and
had once again reiterated his request to withdraw the application for
condonation of delay. He had also made a statement that he did not want
to file any application in future in respect of the subject matter of the
revision application. In view of the said statement made by Rubabuddin,
this court (Coram: A.V. Nirgude, J.) allowed the withdrawal of the

application for condonation of delay and consequently, disposed of the
revision application.
30. The records thus reveal that Rubabuddin, the aggrieved person had
challenged the order of discharge dated 30.10.2014 by filing the revision
application along with the application for condonation of delay. He had
therefore, filed an application to withdraw the said revision application for
condonation of delay. The aggrieved person was allowed to withdraw the
application after giving him ample opportunities to reconsider his request
and after being satisfied that the request was voluntary. Consequently, there
is no merit in the grounds raised by the Applicant to invoke the inherent
power of the Court.
31. Now, coming to the question of locus standi of the applicant, it is
well settled that anyone can set the criminal law in motion. In A.R.Antulay
v. Ramdas Sirinivas Nayak (1984) 2 SCC 500 the Apex Court has held
thus:
“It is a well recognised principle of criminal jurisprudence
that anyone can set or put the criminal law into motion
except where the statute enacting or creating an offence
indicates to the contrary. The Scheme of the Code of

Criminal Procedure envisages two parallel and independent
agencies for taking criminal offences to court. Even for the
most serious offence of murder, it was not disputed that a
private complaint can, not only be filed but can be
entertained and proceeded with according to law. Locus
Standi of the complaint is a concept foreign to criminal
jurisprudence save and except that where the statute creating
an offence provides for the eligibility of the complaint, by
necessary implication the general principle gets excluded by
such statutory provision."
32. These principles have been reiterated in Subramanian Swamy
(2012) 3 SCC 64 (supra) in following words:
“The right of private citizen to file a complaint against a
corrupt public servant must be equated with his right to access
the court in order to set the criminal law in motion against a
corrupt public official. The right of access, a constitutional
right should not be burdened with unreasonable fetters. When
a private citizen approaches a court of law against a corrupt
public servant who is highly placed, what is at stake is not
only a vindiction of personal grievance of that citizen but also
the question of bringing orderliness in society and maintaining
equal balance in the Rule of law."
33. In Sheonandan Paswan (supra) the main controversy was whether the
prosecution launched against Dr. Jagannath Mishra is rightly allowed to be
withdrawn, or whether the withdrawal was invalid. The minority view,
expressed by Justice Bhagwati on the question of locus standi in respect of
interpretation and scope of section 321 was as under:

"Now if any citizen can lodge a first information report
of file a complaint and set the machinery of criminal law in
motion and his locus standi to do so cannot be questioned, we
do not see why a citizen who finds that the prosecution for an
offence against the society is wrongly withdrawn, cannot
oppose such withdrawal. If he can be a complainant or
initiator of criminal prosecution, he should be equally entitled
to oppose withdrawal of the criminal prosecution which has
already been initiated at his instance. If the offence for which
a prosecution is launched is an offence against the society and
not merely and individual wrong, any member of the society
must have locus to initiate a prosecution as also to resist
withdrawal of such prosecution, if initiated."
34. The present case does not involve the issue of locus standi of a third
party / stranger for setting the criminal law in motion The issue in the
present case is whether the applicant, who is a total stranger to the
proceedings can invoke the powers under Section 482 of Cr.P.C. to
challenge the discharge order. Hence, the decisions in Antulay is not strictly
applicable to the facts of the present case.
35. The observations in Sheonandan Paswan on the question of locus
standi were restricted to the interpretation and scope of Section 321 of
Cr.P.C.. The judgment does not lay down that a stranger to the proceeding
can invoke the inherent powers of the court under Section 482 of Cr.P.C. for
challenging the order of discharge particularly when the order of discharge

is revisable.
36. At this stage it would be advantageous to refer to the decision of the
Apex Court in Subramanian Swamy (2013) 10 SCC 465 (supra) wherein
the Petitioner, in a public interest litigation had sought an authoritative
pronouncement of the true purport and effect of the different provisions of
the JJ Act so as to take a juvenile out of the purview of the said Act. The
High Court had declined to answer the question raised on the ground that
the Petitioners had an alternative remedy under the JJ Act against the order
as may have been passed by the Board. In SLP filed before the Apex Court,
an objection was raised as regards its maintainability on the ground that it
suffers from the vice of absence of locus on the part of the petitioner.
While considering this objection the Apex Court has observed thus:
" The administration of criminal justice in Indian can be
divided into two broad stages at which the machinery
operates. The first is the investigation of an alleged offence
leading to prosecution and the second is the actual
prosecution of the offender in a court of law. The
jurisprudence that has evolved over the decades as assigned
the primary role and responsibility at both stages to the State
though we must hasten to add that in certain exceptional
situations there is a recognition of limited right in a victim or
his family members to take part in the process, particularly, at
the stage of the trial The law, however, frowns upon and
prohibits any abdication by the State of its role in the matter

at each of the stages and, in fact, does not recognize the right
of a third party/stranger to participate or even to come to the
aid of the State at any of the stages."
On merits the SLP was held to be maintainable as the adjudication that the
Petitioner was seeking had implications beyond the case/proceedings. It
was held that the interpretations of the provisions of Juvenile Justice Act
would have effect on all juveniles, who may come in conflict with law- both
in the immediate and near future.
37. In Simranjit Singham & Karamjit Singh (supra) while considering the
question whether a third party who is a total stranger to the prosecution
culminating in the conviction of the accused, has any locus standi to
challenge the conviction and sentence awarded to them, by invoking Article
32 of the Constitution, the Apex Court has reiterated that neither the
provisions of the Code of Criminal Procedure, 1973 nor any other statute
permits a third party stranger to question the correctness of conviction and
sentence imposed by the court after the regular trial.
38. In Sulochana Devi (supra) the Petitioner who was not a party to the
proceedings had invoked the powers of the High Court under section 482 of

the Cr.P.C. to challenge the order of issuance of proclamation under section
82 of the Code and attachment of the property. Raising the issue of locus
standi, preliminary objection was raised to the maintainability of the
application at the behest of the Petitioner. The Orissa High Court after
considering the scope of section 482 of the Cr.P.C. as well as the decisions
of the Apex Court in Madhu Limaye, Simerjeet Singh (supra) and in the
case of the Janata Dal V/s. H.S. Choudhary & Ors. 1993 Cri.L.J. 600
citation held that :
..."Even if there are million questions of law to be deeply
gone into and examine in a criminal case registered against
specified accused persons, it is for him/ them to riase all such
questions and challenge the proceedings initiated at
appropriate time before the proper forum and not for third
parties either individually or under the garb of public interest
litigation. ordinarily, the aggrieved party, which is affected
by any order has the right to seek redress by questioning the
legality, validity or correctness of the order unless such party
is a minor and in same person or is suffering from any other
disability which law recognises as sufficient to permit
another person e.g. next friend, to move the court in his
behalf. "
39. Reverting to the case in hand, it is not in dispute that the applicant is
neither a victim nor an aggrieved person. He is not in any manner
connected with the proceedings pending before the learned Sessions Court

Greater Bombay. The Applicant has not suffered any prejudice and has not
demonstrated that his legal rights are impaired or any harm /injury is caused
to him or is likely to be caused. The Applicant has thus not been able to
demonstrate that his legal right has been invaded so as to give him locus
standi to challenge the order.
40. The Applicant who claims to be a socially responsible citizen has
allegedly filed this application for preventing abuse of process of court. It
is pertinent to note that though the alleged incident had occurred in the year
2005, and no case was registered against the respondent no.1 and the other
police officers, the applicant herein had not shown any interest to set the
criminal law in motion. The said crime was registered only pursuant to the
directions given by the Honourable Supreme Court in view of the letter of
grievance made by Rubabuddin, the brother of the deceased.
41. It is also pertinent to note that the respondent no.1 was discharged by
the order dated 30.12.2014. The CBI had not challenged the said order.
The aggrieved person, Rubabuddin had also not filed any revision
application within the period of limitation. Despite which the applicant,

who claims to be a socially responsible citizen, had not taken any steps to
challenge the said order. It is to be noted that one Shri Rajesh Kamble, who
was also not a party to the proceedings had opposed the withdrawal
application filed by Rubabuddin Shaikh, in his capacity of being "an alert
citizen". The said application was dismissed vide order dated 21.10.2015.
The Applicant has shown interest in this matter only after the dismissal of
the application filed by Rajesh Kamble.
42. It is also pertinent to note that several other accused in the said crime
have also been discharged, but the applicant has not challenged the said
orders, but has sought to challenge only the order whereby the present
respondent no.1 has been discharged. The social interest and responsibility
proclaimed by the Applicant is thus restricted only to the relief sought
against the Respondent No.1 and does not even extend to other accused in
the said case much less having larger implications beyond the case. This
is a predominant distinguishing feature in the relief sought in the present
case vis- a-vis a relief in Subramanian Swami (supra). The above facts
coupled with the fact that applicant has shown sudden interest in matter
after a period of over 10 years gives an indication of lack of bonafides.

Needless to state that the criminal law cannot be permitted to be used as an
instruments to wreck vengeance due to personal or political grudge or to
spite the accused for any other oblique purpose.

43. In the instant case, the State had not challenged the order of
discharge. nonetheless the aggrieved person, Rubabuddin Shaikh, the
brother of the deceased Shorabuddin had challenged the said order in
revision application (st) 413 of 2015 which was filed along with the
application for condonation of delay being application No.355 of 2015. As
stated earlier this Court has allowed the aggrieved person to withdraw the
said application after being satisfied that the request for withdrawal was
voluntary and that the same was not made under threat, pressure,
inducement or promise. Hence, this is not one of those rare cases which
brings about a situation which is an abuse of the process of the Court,
which necessitates exercise of inherent jurisdiction.
. Under the circumstances and in view of the discussion supra, the
application is dismissed.
 (ANUJA PRABHUDESSAI, J.)

Print Page

No comments:

Post a Comment