The following appeared in "Times of India", Mumbai Edition on March 12,2009, page no. 01.
May be useful for future references.
Mumbai: Shocked that a magistrate had passed two differing orders on the same day in the same case, the Bombay high court recently called for administrative action against him.
On August 30, 2008, additional chief metropolitan magistrate S N Chinchamekar of the Esplanade court had first, in a handwritten order, held that a particular dispute appeared to be “civil in nature’’ and it was “totally wrong for the complainant to approach a criminal court’’. But later, a typed version of the order, signed by the magistrate, said that it was “necessary to direct the police to investigate under Section 156 (3) Criminal Procedure Code’’.
The HC order, seeking punitive action against the magistrate, is significant because it’s not unusual for litigants to try to give civil disputes a criminal hue. Lawyers say this helps ensure a police probe for offences like cheating and criminal breach of trust. The police then threaten to arrest the “accused to facilitate a settlement’’.
But it’s rare to find a magistrate passing two conflicting orders on the same day.
Petitioners deceived court: Magistrate
Mumbai: Additional chief metropolitan magistrate S N Chinchamekar of the Esplanade court faces action for having given two different orders on the same case in a day.
The case dates back to a complaint filed before the magistrate by KJMC Global Market (I) Limited, a financial services company. KJMC alleged that it was cheated out of its commission for helping facilitate a loan worth millions of dollars as per a 2002-03 deal.
Based on the magistrate’s typed order, asking for a criminal inquiry, the Marine Drive police, which had initially taken no cognisance of the case, filed an FIR against Deepak Krishnappa and T G Krishnamurthy. Krishnappa and Krishnamurthy, the directors of a company, went to the high court seeking the quashing of the FIR filed against them for cheating under the Indian Penal Code. They said the facts had been twisted to make a criminal complaint, because the loan had never come through.
Questioning magistrate Chinchamekar’s order,their petition said the two orders passed by the magistrate were a “mystery’’ and showed the functioning of the trial court in very poor light.
Advocate Mihir Gheewala, who represented the high court petitioners, said it was only after obtaining certified copies of the lower court’s orders that they had discovered the startling difference.
Last month, an intrigued HC first asked the magistrate to explain the two orders. A bench headed by Justice Bilal Nazki said it was “even more surprised at the explanation when we saw two orders passed on the same day’’. The magistrate said he had called for a report on the typed order. He said he had “signed the typed order without reading it, believing that I had asked the typist to type it’’. But then the ma gistrate said his clerk had typed it on “instructions of a bench clerk’’.
He said the HC petitioners had obtained the certified handwritten and typed copies “for personal use’’, but used them to file a writ petition. Hence, it was the petitioners who “deceived the court’’, he said. The HC, quite startled, said, “We do not know whether that would mean that had he known that the orders would be used for filing the writ petition, he would not have issued the certified copies?’’
Holding that “the whole thing is shrouded in mystery’’, the HC quashed the magistrate’s order and asked another magistrate to decide the original complaint for both the orders passed. It also sent the magistrate’s orders to the chief justice, so that action could be initiated against the magistrate. On the case itself, the HC plea said the KJMC’s complaint to the magistrate was nothing but “an abuse of process and dishonestly filed to browbeat and humiliate Krishnappa and Krishnamurthy, who is 72 years old, to extort monies with the threat of getting them arrested even when no criminal case is made out’’. Aabad Ponda, representing KJMC, said the criminal complaint was valid.