STATE OF MAHARASHTRA Vs. B K SUBBARAO

JUDGEMENT

(1.) THIS is an unfortunate proceeding that bristles with mala fides and, consequently, compels the conscience of this Court to pass an order that is in consonance with the principles of fairness and equity. The respondent, Dr. Subbarao, had filed Criminal Writ Petition No. 966 of 1990 which was a comprehensive challenge to the very validity of the main prosecution that had been instituted against him. Rule had been issued and the matter was pending for final hearing before a Division Bench of this Court in the month of February 1991. The Petition was high on the daily board and was due for final hearing. It is relevant to mention that when the petition was admitted, the Court had granted stay of the proceeding before the trial Court because the petition challenged the validity of those proceedings. Until the disposal of that petition, therefore, there could have been no question of the trial commencing or of the petitioner, who was the original accused, being required before that Court for any purposes.

(2.) THE respondent, Dr. Subbarao, made an application before the Division Bench after producing all the relevant documents, for permission to visit the U. S. A. along with a team from Reliance Industries Ltd. for only three days. The respondents services were engaged on the basis of being an expert in the field. The respondent made a strong plea to the Court that after the trauma undergone by him in the preceding three years that for his and his familys very survival it was very essential for him to take up at least a few assignments and earn some money to keep afloat. He established that Reliance Industries Ltd. were to pay him a sum of Rs. 25,000/- by way of consultancy charges for this particular assignment. The Division Bench was unable to dispose of the main writ petition at that point of time because the State of Maharashtra had sought adjournments earlier and it was at the relevant time in the midst of certain detention matters. The Division Bench (Puranik and Saldanha, JJ.) directed the parties to the trial Court for the purposes of disposal of the petitioners application since it, prima facie, appeared that if the Court was satisfied about the fact that the accused will not abscond, there was no reason why he should not be permitted to leave the country for a short period of three days. It is crucial to record that the State was represented before the Division Bench by Mrs. Manjula Rao, learned Special Public Prosecutor, who was present on each date of hearing and was fully aware of the fact that this application was an off-shoot of the main proceeding with which the Division Bench was seized and further that the issues involved had effectively been argued before that Court. The Division Bench to which I was a party had occasion to scrutinise the documents and to hear the parties and since it appeared to be genuine case where no prejudice would have been caused to the Prosecution, the parties were directed to the learned Additional Sessions Judge, who was requested to hear them and pass appropriate orders. This the learned Additional Sessions Judge did and by an order dated 14-2-1991 the respondent was granted permission to leave India between 17-2-1991 and 21-2-1991. This order was passed in open Court on 14-2-1991and the respondent was due to fly out of the country on 17-2-1991, i. e. , within three days. According to the respondent, he genuinely apprehended that an application would be made to the High Court against this order for which purpose he came to the High Court and remained here in the Court premises and before the Division Bench on 15-2-1991 as he did not desire that any ex parte order should be obtained against him. He genuinely expected, and rightly so, that any further application which the State would make could only be addressed to the Court before which the main petition was pending. No such application was made to the Division Bench on 15-2-1991. The Petitioner was informed in the evening of 15-2-1991 that an ex parte order had been obtained from the learned Single Judge staying the order of the Sessions Court and that this order had been served on the U. S. Consulate pursuant to which the Consulate revoked the visa granted to the respondent. The respondent made a grievance of this fact before the Division Bench on 16-2-1991 whereupon since the matter related to a judicial order passed by the learned Single Judge, all that the Division Bench could do was to request the learned Single Judge to look into the matter and, if appropriate, to reconsider his order after hearing the respondent. According to Dr. Rao, the learned Single Judge would not hear him because on 15-2-1991 the following order had already been passed.

(3.) DURING the hearing of Criminal Revision Application No. 123 of 1991, Dr. Subbarao, attacked the fairness or what he categorised as total absence of fairness with regard to the manner in which the proceedings against him have been conducted by the State from time to time. He referred to this particular incident and I have recorded in that judgement my conclusions, that after hearing the parties, to my mind, the manner in which this order was obtained was not only unfair but that it constituted a sharp practice. Dr. Rao, has applied for disposal of this petition. After hearing Counsel for the State, who had no objection, the matter has been placed on board for disposal.