Thread by @barandbench

Bench led by Justice SS Shinde of #BombayHighCourt to hear the plea filed by #SameerWankhede seeking to quash the FIR alleging fraud to obtain bar license as a minor.

Adv Niranjan Mundargi for Wankhede: There is some urgency in the matter.
Before we begin, can it be taken up after 10 mins because Sr Adv Ponda leads me.

Mundargi: An FiR has been filed against a public servant claiming that he is a minor when the license was given. Let them respond.

Mundargi: let them just not take coercive action against me. It is lodged because I as an officer took action against sitting minister.

Bench: Supreme court has said in as many words.

Chief PP: notice has been issued under section 41A and he has been directed to appear on feb 23 which is tomorrow

Mundargi: I will appear.

Court: police officer is here, they have apprehension in mind. Let him appear under 41A notice.

PP: Milord may say that considering 41A he will appear on Feb 23 and he will appear on Friday.

Court: Just convey to your officer to not take any action till next date.

Adv Feroze Bharucha for #NawabMalik: I am intervening. Requesting for copy of the petition because there are allegations agaisnt me.

Mundargi: I am not making any allegations. I have only annexed orders to give a background. These are all in the public domain.

Court: Are you not inviting our attention to these allegations? Just serve him a copy.

Ponda: There is pressure from the police, because of the nature of the case. Also see the kind of opposition I have. I will show why an interim is required even after 41A notice.

Ponda: Please see the@FIR. The proforma of the FIR mentions period of offence. This is the period when I was a minor and I was supposed to have committed these offences. The punishment is upto 7 years.

Ponda: I am saying there cannot be an FIR in the present case.
There cannot be an@FIR against a minor.

Court: when there is notice under Sec 41A and punishment is below 7 years.

It is an offence of 1997, what are you going to do now? make a statement of no arrest

Court: this is not here nor there.

Ponda: If I am arrested then I will lose my job.

Court: If they arrest you, then you can approach.
Police officers in metropolitan understand duties.. if they do not understand..

Court: We will just say that the notice under 41A is issued and the offences are punishable with upto 7 years.
There is no urgency. There are convicts and prisoners languishing in jail for years because we are not able to hear their appeals.

PP: Milords may give me time to take instructions.

Court: Okay at 2.30 today.

Chief PP: We have issued notice under 41A. And he may co-operate with the investigation and we will follow due procedure.

#BombayHighCourt

PP: If arrest is not required only in those situations 41A is issued. In view of this notice, let him go and co-operate. Those are my instructions.

Ponda: Please see Arnesh Kumar.
It won’t just stop at arrest. And I am not against adjournment or attendance. It is more than 25 years of making the alleged affidavit. That can be tackled, when I argue the final matter.

Court: But the problem is 41A. And this is not our matter. Till the matter is heard by regular bench, when you can argue on that issue, till then you can make a statement.

Court: Till next date you can make this statement.

PP: If he appears tomorrow..
If he appears then his apprehension doesn’t stand.

Ponda: If I appear they can still arrest me.
As per 41A. In one breath she says that we don’t want to arrest and in the other breath she says that arrest can be made. We cannot have it both ways.

Ponda: I do not mind taking adjournment. I am not opposing it. But then make your stand clear on arrest.

PP: this is the first time the matter has come up. I need some time to take instructions.

PP: Why is he apprehending arrest. If there is extreme urgency he can come in court.

Court: The officer may not be in a position to make that statement because of … reasosn which cannot be stated in open court. Because of which you are not in a position to make statement

Court: So we will pass orders, recording his statement, that he will appear and the officer will proceed in due procedure of law.

Court: and also give a copy…

Bharucha: Yes I have received copy.

Ponda: I told him, this is not an issue. We do not want to file over copies.

Court: No Mr. Mundargi was harsh in the morning..

Ponda: With age you mellow down.

Court: The petitioner will appear before the police station on Feb 23 at 11 am.

Court: He submits that he will extend full co-operation in the investigation. Till matter is heard by regular bench, the interim protection of “no-coercive steps” be given,

Court: The PP shows us the provision under 41A which states that the notice once given and if the petitioner co-operates, then question of arrest does not arise. Since other Bench is not available for hearing this matter which pertains to that court.

Court: it was mentioned before this coirt and hesrd by prties, without entering into merits of the caee by both parties. Registry may place the matter before Feb 28, 2022.

Court: in light of peculiar facts and corcunstances for the limited period, after appearance before can proceed hnder 41A (1) and (2).
Howver till next date shall not invoke subsection (3) and (4) of 41 A. This is limited relied granted till next date.

Court: In case of extreme urgency, liberty granted to move court.

#BombayHighCourt