Criminal Application (APPW) No. 110/2018 In Criminal Writ Petition No. 258/2017

5th April 2019

Petitioner Counsel: Shri O.D. Kakde
Respondent Counsel: Shri T.A. Mirza

Cases Cited :
Para 8: Perumal Vs. Janaki, (2014) 5 SCC 377
Para 8: Ramrameshwari Devi and ors. Vs. Nirmala Devi and anr., (2011) 8 SCC 249
Para 9: M/s Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, AIR 1964 SC 1372
Para 9: Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455

JUDGEMENT

VINAY JOSHI , J.

Heard finally by consent of the learned counsel appearing for the parties.

2. The applicant (original petitioner) earlier filed Criminal Writ Petition No. 258/2017 challenging the order of the respondent No. 4- Sub-Divisional Magistrate, Wardha dated 05.01.2017 rejecting applicant's contention for initiating action against the Police Officers for submitting incorrect Police Verification Report in the externment proceeding. The said writ petition was dismissed on merits by this Court vide order dated 08.09.2017. Being aggrieved by said dismissal, applicant filed this application seeking to recall order dated 08.09.2017 passed by this Court and to direct respondent No. 4 – Sub-Divisional Officer, Wardha to initiate criminal proceedings against the respondent Nos. 1 to 3 in terms of Section 340 read with Section 195 of the Code of Criminal Procedure. In short, applicant is seeking review of the order dated 08.09.2017 passed by this Court. The aspect of review is unknown to the Code of Criminal Procedure, however, the application being under Section 482 of the Code of Criminal Procedure, we have entertained the same for examining the grievance on its own merits.

3. The applicant is editor of news paper namely daily “Sahasik”. Externment proceeding was initiated against applicant under Section 56 of the Maharashtra Police Act. In the externment proceeding, Sub-Divisional Magistrate called the Police Verification Report. On receipt of Police Verification Report, Sub-Divisional Magistrate issued show cause notice dated 22.10.2016 to applicant wherein details of criminal cases were given. It is the applicant's case that respondent Nos.1 to 3 (Police Officers) made false statement in the Verification Report submitted to the Sub-Divisional Magistrate. It is specifically contended that out of 12 criminal cases shown in the notice, the applicant has been acquitted in 5 cases. It is his submission that despite applicant's acquittal in 5 cases, the Police Authorities have falsely stated in the crime chart that 12 cases are pending.

4. The applicant would contend that the Police Authorities have deliberately made false statement before the Sub-Divisional Magistrate to facilitate the externment proceeding. Therefore, the applicant contended that the respondent Nos. 1 to 3 committed offence affecting the administration of justice which warrants action under Section 340 of the Code of Criminal Procedure.

5. We may recall that this Court has already considered said submission and by passing speaking order rejected applicant's claim on merits. Inasmuch as this Court has expressed that the applicant has abused the process of the Court for delaying the externment proceeding pending before the Sub-Divisional Magistrate. Some observations made by this Court in impugned order are relevant which are reproduced below:
“We are afraid that the petitioner has abused the process of this court by filing the writ petition and also by delaying the proceedings pending before the Sub-Divisional Magistrate for his externment by distracting the attention of the Sub-Divisional Magistrate, who was considering the proposal for externing the petitioner. If twelve offences were stated to have been pending against the petitioner in the police verification report or the show cause notice under section 59 of the Maharashtra Police Act, the petitioner could have as well informed the competent authority Sub-Divisional Magistrate that all the twelve proceedings were not pending against him and in five of the proceedings, he was acquitted. It is stated by the learned Additional Public Prosecutor that the petitioner had filed a criminal writ petition challenging the show cause notice that was served on the petitioner under section 59 of the Act with a view to protract the proceedings pending before the Sub-Divisional Magistrate. This court had, however by the order dated 21/11/2016 disposed of the said writ petition by permitting the petitioner to challenge the order of externment, if passed. Instead of participating and defending the proceedings that are initiated against the petitioner for externment under the provisions of section 56 of the Maharashtra Police Act, the petitioner has indulged in filing applications before the competent authority Sub-Divisional Magistrate for taking action against the aforesaid three police officers. We find that the application is made by the petitioner for initiating action against the three police officers with a view to protract the proceedings pending before the Sub-Divisional Magistrate and for browbeating the police authorities and the Sub-Divisional Magistrate. If the petitioner was aggrieved by the allegations in the show cause notice about the pendency of the cases against him or in respect of the other allegations made against him, he was free to reply to the show cause notice and defend the allegations. We however do not find any propriety in the action on the part of the petitioner in seeking the initiation of the proceedings against the three police officers under section 340 read with section 195 of the Code of Criminal Procedure. We also do not find any propriety in the action on the part of the petitioner in filing the present writ petition which according to us in an abuse of the process of court, as we are presently hearing the matter of convicts who are languishing in jail for a long time.”

6. It is not in dispute that externment proceeding is still pending though notice under Section 59 of the Maharashtra Police Act was issued longback on 22.10.2016. The very purpose of issuance of show cause notice is to call explanation or to offer an opportunity to the applicant to put his stand before the Authority. Rather the applicant has already filed exhaustive reply dated 05.01.2017 before the Authority of which copy is produced on record. Therefore, no question of causing prejudice to the applicant would arise. The applicant has already brought to the notice of the authority the correct position of criminal cases.

7. The impugned show cause notice gave list of 12 criminal cases without specifying its status, which cannot form basis to initiate action under Section 340 of the Code of Criminal Procedure. The very language used in Section 340 of Code of Criminal Procedure, conveys that the Court is not bound to make a complaint regarding commission of offence referred to in Section 195(1)(b) of the Code of Criminal Procedure unless the Court is of the opinion that it is expedient in the interest of justice to do so. In case at hand, the applicant had full opportunity to explain the contents of show cause notice which he did and therefore, there is no propriety to initiate action as prayed.
8. The learned counsel appearing for applicant submitted that this Court is quite competent to take action in terms of Section 340 of the Code of Criminal Procedure. In this regard, he relied on the Apex Court judgment in case of Perumal Vs. Janaki, (2014) 5 SCC 377 and particularly attracted our attention to para 20 of the judgment which reads as under:
“20. The High Courts not only have the authority to exercise such jurisdiction but also an obligation to exercise such power in appropriate cases. Such obligation, in our opinion, flows from two factors – (1) the embargo created by Section 195 restricting the liberty of aggrieved persons to initiate criminal proceedings with respect to offences prescribed under Section 195; (2) such offences pertain to either the contempt of lawful authority of public servants or offences against public justice.”
Undoubtedly, the Superior Court has authority and concurrent competency to take cognizance for which there can be no dispute however, unless such case is made out, the cognizance cannot be taken. The applicant further relied on the judgment in case of Ramrameshwari Devi and ors. Vs. Nirmala Devi and anr., (2011) 8 SCC 249. We have gone through said judgment but it would not assist applicant in any manner.

9. We must note that by way of this application, in terms of Section 482 of the Code of Criminal Procedure, the applicant is seeking review of the order dated 08.09.2017 passed by this Court in Criminal Writ Petition No. 258/2017. The nature of this application is nothing but an attempt to review the order of this very Court. The scope of review is quite limited. Unless there is patent error or mistake apparent on the face of the record, the review cannot be entertained. In this regard, we may refer the decision of Apex Court in case of M/s Thungabhadra Industries Ltd. Vs. The Government of Andhra Pradesh, AIR 1964 SC 1372. In the said case, it is ruled that error apparent is distinguished from mere erroneous decision. The review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. Where without any elaborate argument one could point to the error and there could reasonably be no two opinions then only review is maintainable. In another decision of Apex Court in case of Smt. Meera Bhanja Vs. Smt. Nirmala Kumari Choudhury, AIR 1995 SC 455, it is ruled that the review Court not to act as appellate Court. The error apparent means an error which strikes one on mere looking at record and would not require any long drawn process. Therefore, it is abundant clear that scope of review is quite limited. The review Court cannot reappreciate entire material nor act like appellate Forum.

10. Besides that, on the facts we hold that the applicant failed to establish any error apparent or patent mistake which is required to be corrected under review. On the other hand, we endorse the view expressed by this Court in Writ Petition that the concerned Writ Petition was nothing but an abuse of process of law. On the same line, we hold that this application is also abuse of process of law. In conclusion criminal application being devoid of merit, stands dismissed.