WP-2225-09.sxw v. State of Maharashtra

Ms. Aarti Khadilkar, i/b. Bhave and Company, Advocates, for the petitioners. Smt. V.R.Bhosale, APP, for the respndent No.1. Mr. H.F.Arora, Advocate for the respondent No.2. CORAM: J.H.BHATIA,J. DATE : 10th August, 2010. JUDGMENT:

Rule. Rule made returnable forthwith. Heard the learned Counsel for the parties. 2 WP-2225-09.sxw

Respondent No.2 filed a complaint under Sections 103, 199, 200,205, 209, 409, 418,420, 465 read with Section 120 IPC against the present petitioners and it came to be registered as Criminal Case No.16/IR/08 before the Metropolitan Magistrate, Railway Mobile Court, Andheri, wherein the learned Magistrate issued process. That order is challenged in the present Petition.

According to the respondent No.2/complainant, the petitioner had committed the said offence by filing a false affidavit before this Court in Writ Petition No.498 of 1998. It appears that the respondent No.2 had filed a Special Leave Petition before the Supreme Court wherein he contended that fraud was played by the petitioners during the course of hearing of the petition by the High court. The Special Leave Petition was dismissed observing that as the allegation of fraud was not pleaded and pointed out to the High Court, the Supreme Court would not look into it in Special Leave Petition. Admittedly, the High Court has not given any finding that any fraud was played by filing a false affidavit.

Section 195(1)(b)(i) provides that no Court shall take cognizance of any offence punishable under sections 193 to 196, 199, 200, 205 to 211 and 228, when such offence is alleged to have been committed in, or in relation to any 3 WP-2225-09.sxw proceeding in any Court except on the complaint in writing of that Court or by such oficer of the Court as that Court may authorise in writing in this behalf, or of some other Court to which the Court is subordinate. If the said offences were committed by filing false affidavit and fraud was played with the high Court, no Court can take cognizance of such offence unless the complaint as filed by the High Court or by any officer of the high Court as may be authorized in writing by this Court. Neither this High Court has come to conclusion that such an offence has been committed nor this Court has filed any complaint nor this Court has authorised any of its officer to file such complaint. The complaint was filed by respondent NO.2, who is a private party. In view of the provisions of Section 195(1)(b)(i) Cr.P.C., the Magistrate could not take cognizance of the same. Therefore, the trial court committed error in taking cognizance and issuing process.