SANDIP SHANKARLAL KEDIA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Heard the learned counsel appearing on behalf of the Petitioner, the learned APP appearing for Respondent No. 1 and the learned counsel appearing for Respondent No. 2 . By this petition, which is filed under Art. 226 of the Constitution of India, Petitioner is challenging the legality, validity and propriety of the impugned order of proclamation issued by the learned Metropolitan Magistrate dated 3.3.2014 in C. R. No. 263 of 2012. Petitioner is also seeking to quash and set aside the impugned order of "Lookout Notice / Circular /Notice, issued in connection with C. R. No. 263 of 2012.

(2.) A preliminary objection is raised by the learned counsel appearing on behalf of Respondent No. 2 regarding maintainability of the petition. It is submitted that the Petitioner had, in fact, filed Criminal Application No. 203 of 2013 in Writ Petition No. 436 of 2013, 437 of 2013 and 3387 of 2013 challenging the look out notice, which was issued by the Respondent. It is submitted that before taking out such application, a submission was made before the Division Bench of this Court by the learned counsel appearing for the Petitioner that Petitioner wanted to file an application for stay to the look out notice, with a prayer that he may be allowed to come in India. Petitioner thereafter filed Criminal Application No. 203 of 2014. It is submitted that in fact on the next date when the said application was heard for sometime, the Division Bench by order dated 6th May, 2014 has allowed the Petitioner to withdraw the said application and no liberty was granted to take out such a petition. Our attention is invited to an order dated 6th May, 2014 passed in Criminal Application No. 203 of 2014, which was taken out by the Petitioner in Writ Petition No. 436 of 2013. It is submitted that Petitioner had filed another petition viz. Writ Petition (L) No. 1797 of 2013 in which there was a specific challenging to the red comer / lookout notice, which was issued against the Petitioner by Respondent Nos. 1 to 3 therein. It is submitted that the Division Bench of this Court while deciding the said petition on 2nd August, 2014 , did not grant liberty to challenge the red comer notice and petition was partly allowed and the order of impounding the passport was set aside. Learned counsel for Respondent No. 2 fairly pointed out that in paragraph 4 of said order it is observed that that all the disputes between the parties, including as to whether the Petitioner is bound to appear himself pursuant to the said show cause notice or whether he is entitled to appear through is advocate are kept open. It is submitted that nowhere liberty was granted in the said order to challenge the lookout notice and since there is no reference in the said order, it was sought to presume that such a prayer was not granted by this Court. Thirdly, our attention was also invited to an order passed by this Court dated 24th July, 2014 passed in Writ Petition No. 3387 of 2013, in which Petitioner herein had challenged the FIR, which was registered against him on various grounds, and had also challenged the lookout notice. It is submitted that the said petition was dismissed, and therefore, prayer challenging the lookout notice was also dismissed. Learned counsel for Respondent No. 2 pointed out the observations made by this Court in paragraph 4 of said order and submitted that since the application was allowed to be withdrawn, the prayer to withdraw or cancel the look out notice is also withdrawn.

(3.) It is submitted that though the said observation was made, in view of dismissal of the petition, said prayer also was not automatically granted, and it was dismissed. It is then submitted that since the Petitioner has challenged the lookout notice, Union of India and Passport Authorities are necessary party to the petition, and as long as said Respondents are added, Petitioner is not entitled to challenge the lookout notice.