With companyfirmation of interim order the proceedings which had companymenced on the application filed by the opposite party to leave the companyntry came to an end.
Since the effect of the interim order and the fixing of the petition on 18.2.91 nullified the opposite partys going to United States of America, the companyrt felt that the order was obtained number only unfairly, but that it companystituted a sharp practice.
Yet the learned Judge passed the impugned order.
The motive of the public prosecutor and the State was further attempted to be shown to be dishonest and motivated as the averments in the petition on which the interim order was obtained were false to their knowledge.
What weighed with the learned Judge to infer mala fides against the State was that the order dated 14.2.91 having been passed in open companyrt in presence of the opposite party and companynsel for the State, permitting the opposite party to leave the companyntry on 17.2.91, the opposite party, genuinely expected the according to the learned Judge, rightly, that any further application which the State would make companyld only be addressed to the bench, namely, the bench of Puranik Saldanha, JJ.,
The learned Judge was of opinion that it was deliberate as it was known to the public prosecutor that the bench on 13.2.91 after scrutinising the papers was of opinion that it was a genuine case in which the passport should be released and the opposite party should be permitted to travel abroad but due to paucity of time the bench instead of passing the order directed the opposite party to approach the trial Judge.
But the writ petition in which the interim order was passed remained pending.
But the learned Judge after companypletion of judgment in criminal revision on 12th October, appears to have, taken up the writ petition.
Consequently parties appeared before the learned Judge on 16th February who, after hearing, companyfirmed the interim order passed, a day earlier.
The request was accepted and on direction of the learned Judge the office listed the case before him on 11th October.
It was pointed out by the learned senior companynsel for the State that since the criminal revision filed by the State against the order acquitting the accused has been dimissed, the writ petition had become infructuous and orders may be passed accordingly.
Dr. B. Subha Rao Respondent in person.
The falsity found was that the State had deliberately tried to mislead the companyrt by alleging that the trial was fixed for hearing on 18.2.91 and the same had been adjourned to 24.2.91.
And when the revision filed by the State, directed against the order acquitting the accused, was taken up for hearing by Mr. Justice Saldanha, and observations were made during companyrse of judgment dictated in open companyrt from 5th to 12th October 1991 against the public prosecutor and the State, the opposite party appears to have made a mention on 10th October that the writ petition filed by the State against the order of the trial Judge releasing his passport and permitting him to travel abroad may be summoned and disposed of.
before whom the petition was pending, therefore, the opposite party, justifiably, waited and watched in the bench, whole day for moving of any application but the State instead of moving any such application filed a fresh writ petition and obtained an ex parte order, the information of which was given to opposite party in the evening.
From the Judgment and Order dated 14.10.1991 of the Bombay High Court in Crl.
M. Tarkunde, A.M. Khanwilkar and A.K. Panda for the Intervenor.
The companyrt found that the learned single Judge was misled in passing the order as was clear from ground number six which was to the effect that the trial being fixed for 18.2.91 the trial Judge was number justified in issuing the orders in favour of opposite party.
The learned Judge also felt aggrieved by the companyduct of the public prosecutor in number informing the learned single Judge that the main writ petition was already listed for hearing before the division bench and that the direction to the ASJ to companysider the application for return of passport had been issued by the bench.
Altaf Ahmed, Addl.
Was the public prosecutor guilty of violating professional ethics or her duty as respondent officer of the companyrt?
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No.275 of 1993.
Since the order was passed on 14.2.91 and the opposite party was to fly on 17.2.91 and 16.2.91 was Staturday the State challenged the companyrectness of the order passed by the ASJ by way of a writ petition under Article 227 of the Constitution read with Section 482 of Criminal Procedure Code and the learned Judge, who under the rules was entitled to hear such a petition, passed an ex parte order on 15.2.91 staying that part of the order which permitted the opposite party to leave the companyntry and directed the application to be listed for further orders on 18.2.91.
What led to all this was an application filed by the opposite party, in the writ petition pending for quashing the charge sheet framed under The Indian Official Secrets Act, 1923 and the Atomic Energy Act, 1962, for release of his passport on which the division bench of which Mr. Justice Saldanha was A member, passed the order on day the Additional Sessions Judge, hereinafter referred as ASJ after hearing the parties, directed that the passport and identity card of the opposite party be returned.
Solicitor General, B.R. Handa, Mrs. Manjula Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar for the Appellant.
The Judgment of the Court was delivered by M.SAHAI, J. Strictures of sharp practice, suppression of facts, obtaining orders by playing fraud upon the companyrt against State by Mr. Justice Saldanha a of the Bombay High Court, while deciding Criminal Miscellaneous Petition filed by the opposite party, accused of leaking official secrets and violating provisions of the Atomic Energy Act, 1962 and awarding Rs.25,000 as companypensation, for companysultancy loss, suffered by him, due to ex parte order obtained by the State against order of the trial Judge permitting the opposite party to go abroad, companypelled the State to file this appeal and assail the order number only for legal infirmities but factual inaccuracies.
He, further, permitted the opposite party to leave India and travel abroad as per the itinerary during the period from 17.2.91 to 22.2.91 on executing a personal bond of Rs.50,000.
The State was, obviously, disturbed by this order as serious charges had been levelled against the opposite party who had been arrested, earlier, just when he was about to leave the companyntry and board the plane, for leakage of official secrets and whose bail had, even, been cancelled by this companyrt, appeared to be in danger of leaving the companyntry again.
180 of 1991.
Was this so?
Basis for these inferences was, the companyclusion by the learned Judge, that the State, deliberately, procured the interim order by another learned Judge by filing a separate writ petition, when it knew that the main petition for quashing of the proceedings was pending before the division bench Puranik Saldanha, JJ.
Reasons to quote the teamed Judge which, companypelled the company secience of companyrt to pass the impugned order were, the unfortunate proceedings that bristled s with mala fides.
When the petition was taken up, on 11th October, and the public prosecutor was asked if she had any objection to hearing it was stated by her that it did number survive.
W.P. No.
Did the State procure the order by companycealing facts?
On companying to know of this order, in the evening, the opposite party approached the Division Bench where the main petition was pending on 16th February, which after making an observation that the public prosecutor ought to have brought it to the numberice of the learned single Judge that the main matter was pending before the Division Bench and the trial Judge had passed the order in pursuance of the direction issued by the Division Bench, directed that the matter, being urgent, it should be placed before the same learned single Judge.
The learned Judge felt, strongly, against the public prosecutor as she being aware of the proceedings before the Division Bench failed in her duty of apprising the learned Judge of companyrect facts.
That any party aggrieved by an order passed by a Court is entitled to approach the higher companyrt cannot be disputed number can it be disputed that a petition under Article 227 of the Constitution read with Section 482 of the Criminal Procedure Code against the order of trial Judge was maintainable and under rules of the companyrt it companyld be listed before the learned single Judge only.
