and object of the concept of anticipatory bail enumerated under

section 438 Cr.P.C. The controversy is no longer res integra. We are

clearly bound to follow the said judgment of the Constitution Bench.

The judicial discipline obliges us to follow the said judgment in letter

and spirit. Hence, it was held that the impugned judgment and order of

the High Court declining anticipatory bail to the appellant cannot be

sustained and is consequently set aside.

65) More recently, in Chetana Shankar Manapure v/s

Bandu 5/0 Tanaji Barapatre 2020(3) All MR 254, a Hon'ble

Single Judge of our own Bombay High Court had also dealt

with the issue of per incuriam

66) The Hon'ble Judge had noted that in the case of

Rattiram v. State of M.P., reported in (2012) 4 SCC 516,

the Hon'ble Supreme Court considered the aspect of a

binding precedent and held as follows:

"24. It is apposite to note that in Kuttappan case,

the assail was different and the Bench was not
considering the effect of non-committal under
Section 193 of the Code after conviction was
recorded. Though it referred to the authority in
Vidyadharan, yet that was to a limited extent.
Hence, the said pronouncement cannot be
regarded or treated to be one in line with
Vidyadharan and is, therefore, kept out of the
purview of conflict of opinion that has emerged in
the two streams of authorities.

ABA No.272/2021 CNR No.GANG01-001340-2021 31 of 47

 25.Before we advert whether Bhooraji was correctly
decided or Moly and Vidyadharan laid down the law
appositely, it is appropriate to dwell upon whether Bhooraji
was a binding precedent and, what would be the consequent
effect of the later decisions which have been rendered without
noticing it.

26.In Union of India and Another v. Raghubir Singh the

Constitution Bench, speaking through R. S. Pathak, C.J., has
held thus: (SCC p. 778, para 28) "28. We are of opinion that a
pronouncement of law by a Division Bench of this Court is
binding on a Division Bench of the same or a smaller number of
Judges, and in order that such decision be binding, it is not
necessary that it should be a decision rendered by the Full
Court or a Constitution Bench of the Court"

27.In Indian Oil Corpn. Ltd. v. Municipal Corpn. the

Division Bench of the High Court had come to the conclusion
that Municipal Corpn., Indore v. Ratnaprabha was not
a binding precedent in view of the later decisions of the co-
equal Bench of this Court in Dewan Daulat Rai Kapoor v.
New Delhi Municipal Committee and Balbir Singh v. MCD. It
is worth noting that the Division Bench of the High Court
proceeded that the decision in Ratnaprabha was no longer
good law and binding on it. The matter was referred to the
Full Bench which overruled the decision passed by the Division
Bench. When the matter travelled to this Court, it observed
thus: (Indian Oil Corpn. Ltd. case, SCC p.100, para 8)

"8. ......The Division Bench of the High Court in

Municipal Corpn., Indore v. Ratnaprabha Dhanda
was clearly in error in taking the view that the
decision of this Court in Ratnaprabha was not

ABA No.272/2021 CNR No.GANG01-001340-2021 32 of 47

 binding on it. In doing so, the Division Bench of the

High Court did something which even a later co-

equal Bench of this Court did not and could not do."

28.In Chandra Prakash v. State of U. P. a subsequent

Constitution Bench reiterated the view that had already been
stated in Raghubir Singh.

29.Thus viewed, Bhooraji was a binding precedent, and when in

ignorance of it subsequent decisions have been rendered, the
concept of per incuriam would come into play."

67) The Hon'ble Single Judge in Chetana Manapure

(supra) noted that above a reading of the judgments of the

Hon'ble Supreme Court of Benches of co-equal strength in the

cases of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (2012) 8

SCC 706, Sejal Glass Limited v. Navilan Merchants (P) Ltd.

(2018) 11 SCC 780 and Madhav Prasad Aggarwal v. Axis Bank

Ltd. (2019) 7 SCC 158 would show that there is neither any

reference to nor any explanation in the subsequent two

judgments regarding the judgment rendered earner in

point of time.

68) The Hon'ble Single Judge found that the said judgment of

the Hon'ble Supreme Court in the case of Church of Christ

Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust (supra), wherein it was held

that the plaint could be rejected as against one of the

defendants and the suit could continue against other, was not

brought to the notice of the Hon'ble Supreme Court when

ABA No.272/2021 CNR No.GANG01-001340-2021 33 of 47

judgments were rendered by Benches of co-equal strength in

the case
of Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) and Madhav

Prasad Aggrawal Vs. Axis Bank Ltd. (supra). Consequently, the earlier

judgment in the case of Church of Christ Charitable Trust & Educational

Charitable Society v. Ponniamman Educational Trust (supra) was not

explained or dealt with in the aforesaid subsequent judgments

rendered by Benches of co-equal strength of the Hon'ble Supreme

Court.

69) The Hon'ble Single Judge further found that in the case

of Madhav Prasad Aggarwal v. Axis Bank Ltd. (supra) a Bench of

co-equal strength held that the aforesaid judgment in the case

of Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) was

directly on the point. By following the said judgment, it was held

that if the plaint survives against certain defendants, Order VII

Rule 11(d) of the CPC will have no application and that the suit

as a whole must proceed to trial. In the said case, defendant

No.1-Bank had claimed that the suit was barred as against it

under section 34 of the Act of 2002. It was also claimed that

the averments in the plaint did not spell out a case of fraud

against the Bank. In such circumstances, it was held by the

Hon'ble Supreme Court that the plaint could not have been

rejected only as against the defendant-Bank.

70) The Hon'ble Single Judge also found that the judgment of

the Hon'ble Supreme Court in the case of Church of Christ

Charitable Trust & Educational Charitable Society v.

Ponniamman Educational Trust (supra) can be followed as per

ABA No.272/2021 CNR No.GANG01-001340-2021 34 of 47

of the position of law indicating that it is a binding precedent

on this Court, in view of absence of any reference

to or explanation of the said judgment in the subsequent judgments of

Benches of co-equal strength of Hon'ble Supreme Court in the cases of

Sejal Glass Limited v. Navilan Merchants (P) Ltd. (supra) and Madhav

Prasad Aggarwal v. Axis Bank Ltd. (supra).

71) Hence, I find that none of the cases cited by the 10,

the Constitution Bench Judgement in Sibbia (supra) and its

elaborate discussion on the principles governing section 438

and reiterated in Siddharam Mhetre (supra), were referred

leading to a reasonable conclusion, most respectfully, that those

judgements are per incuriam.

72) A perusal of the say of 10 vis-a-vis the application

under consideration indicates that the 10 has not responded to

the assertions of the facts stated in the application namely, the

fact that there was an unjust and unlawful demand by very the

complainant herein namely, the Director of Civil Aviation, Mr.

Suresh Shanbhogue demanding a commission for the release of

compensation in favour of the Applicant. He has not even

investigated the veracity of such claim by the Applicant.

73) Today, in the course of arguments, when it was asked

of the 10 again, what was done about the complaint of the

Applicant against Mr. Shanbhogue, he claimed that reply was

given to him that no case was made out. Ld. PP Barreto

submitted that the Applicant had therefore, approached the

JMFC in an application under section 156 (3) Cr.P.C. which was

rejected. However, he did admit that a revision

ABA No.272/2021 CNR No.GANG01-001340-2021 35 of 47

application CRRA No.36/19 against that Order of dismissal is pending

before Sessions Judge, North Goa.

74) I find that apart from a statement across the bar, there

is absolutely no material on record to suggest that the

Respondent had done anything on the complaint of the

Applicant against Mr. Shanbhogue. PI Parab has not

responded to the assertion that FIR 11/2018 was in fact

registered on the basis of the complaint dated 07.11.2017 of

Suresh Chopdencar and that the present FIR based on the

complaint of Suresh Shanbhogue is a complete departure

and contains improvement over the earlier complaint of

Suresh Chopdencar.

75) The fact that Applicant had to move the Hon'ble High

Court Writ Petition No.29/2018 which is pending before Hon'ble

High Court of Bombay at Goa for release of the additional

compensation and the unreasonable demands Mr. Shanbhogue,

has not even been verified by the 10. The fact that the Writ

Petition No.29/2018 filed by the Applicant is still pending

before the Hon'ble High Court, was verified from the High

Court website.

76) The 10, in his say and additional say, has not even

touched upon the claims of the Applicant that the very FIR of

Mr. Shanbhogue was based on the complaint of one

Suresh Chopdencar dated 07.11.2017 to the then Chief

Minister Manohar Parrikar. When PI Parab was asked in the open

ABA No.272/2021 CNR No.GANG01-001340-2021 36 of 47

court on 06.10.2021 that he has ascertain the veracity of Shri.

Chopdencar's complaint, he had merely stated that

investigation into that aspect was in progress. Today, when asked

again, PI Parab finally admitted that the statement of one Suresh

Chopdencar was indeed recorded in this case, but he had denied filing

any such complaint against the Applicant.

77) It is noteworthy that the complaint of said

Suresh Chopdencar dated 07.11.2017, copy of which is on

record and which was obtained by the Applicant under the RTI

Act from none other than the PI, Crime Branch, Ribandar, it is

clearly stated that as per Suresh Chopdencar said Laxmibai was

very much alive and was of 60 years of age as on

07.11.2017 when that complaint was filed. Suresh

Chopdencar's complaint to the Hon'ble Chief Minister

indicates that Mrs. Laxmibai Ganesh Madival did in fact execute

a power of attorney dated 09.11.2007 and therefore, it was

important for PI Parab to have investigated into the complaint of

Suresh Chopdencar since he seems to have supported the

Applicant's case and prima facie appears to have negated

the case of Suresh Shanbhogue that Mrs. Laxmibai Ganesh

Madival had died prior to the Liberation of Goa.

78) Another important point to be noted is that on

06.10.2021 while hearing arguments and perusing the case

papers, PI Parab had produced a reply to a query made to

the Director, Printing and Stationary department, Charni

Road, Mumbai 400004 which shows that the address 9/18

Mudran Kamgarnagar did not exist because there were only 16

flats in each building. When read in harmony with Suresh

ABA No.272/2021 CNR No.GANG01-001340-2021 37 of 47

Chopdencar's complaint, it appears that said Laxmibai was

residing c/o Bhiva Sakharam Mandrekar, at 9/16 Mudran

Kamgarnagar.
 79) It is also noteworthy that in his complaint dated

07.11.2017 Suresh Chopdencar has given the address of

said Laxmibai as "resident of c /o Bhiva Sakharam

M an d r e k a r , 9/16 Mudran Kamgarnagar, near Four

Bungalows, Andheri (West) Mumbai 400053" which PI Parab

claims is fake and non-existent. PI Parab admitted that no

effort was made to verify whether at least at 9/16

Mudran Kamgarnagar said Laxmibai had ever resided with

Bhiva Sakharam Mandrekar around the time when the power

of attorney was executed in favour of Francy Gonsalves and all

the more reason for PI Parab to have investigated the complaint

of Suresh Chopdencar.

80) PI Parab, when asked whether a handwriting sample

was t a k e n from the woman who has now come

f o r w a r d a s t h e impersonator, to compare with the alleged

forgery of the original power of attorney, replied that same

would be done in due course, as the original power of attorney

was produced by the Applicant. He also informed that the

statement of the woman recorded under Section 164 Cr.P.C.,

which supported the contention of Umesh Gad that they were

influenced by the Applicant and Francy.

81) It is pertinent to note that in para 54 of the application

there is a categorical statement by the Applicant that the

enhance compensation amount was never released to the

Applicant and therefore the contention of PI in his say that

the Applicant had defrauded the exchequer has to be

ABA No.272/2021 CNR No.GANG01-001340-2021 38 of 47

investigated. I do not find that for this purpose the custodial

interrogation of the Applicant is necessary in view of the

directions to the Applicant to produce his financial records

and statement when demanded by the 10 and, which admittedly he

has complied with.

82) Ld. Adv. Costa Frias submitted that the Applicant had

never in the past more than three years since the filing of the

FIR made any attempt to abscond. It is also not denied that he

is permanent resident of address mentioned in the cause title. At

no point of time prior to the surrender and arrest of Francy

Gonsalves the 10 has sought to arrest the Applicant herein for

the past more than three years.

83) A bare perusal of the complaint itself dated 20.01.2018 of

Mr. Suresh Shanbhogue is sufficient to show that apart from

the joint application of the so-called heirs of Mrs. Laxmibai

Ganesh Madival there is admittedly no documents to show

that said Laxmibai had expired or that said heirs were indeed

heirs of Mrs. Laxmibai Ganesh Madival.

84) In the course of arguments on 06.10.2021 PI Parab

had produced a "document" of Shri. Sateri Mahadev

Devasthan, Cansarvornem said to be of "Comprimiso Records"

maintained by the Devasthan to show that the property in

question was granted to the ancestors of the Madval family in

lieu of services rendered by them to the Devasthan. Upon a

perusal of the same, I find that the said "document" is not

much of a document since it is only a covering letter of the

Devasthan's Secretary with a photocopy of one page which has

paging reference to one Laxman Yesso Madval who was

ABA No.272/2021 CNR No.GANG01-001340-2021 39 of 47

rendering services to the Devasthan. There is no title to the

document, no start
or ending of the document nor pagination since it is just one page of

an unknown number of pages of a document or register.

85) When it was asked of PI Parab whether there is no

reference to the property in question, PI Parab submitted

that as per the statements of the Secretary Vivek Naik and the

Attorney Navnath Naik coupled with the statements of the so-

called heirs, it was the same property. This "document" ipso

facto cannot be said to establish that Laxmibai Madval had

died prior to the Liberation of Goa for the document also

bears no date.

86) On his part, Ld. Adv. Costa Frias has relied upon

S Ravichandra @ Ravi v/s State of Karnataka of the

Hon'ble Karnataka High Court (Criminal Petition No. 6235 of

2011 decided on 02.12.2011), para 8:

It is relevant to note, the allegations are that

petitioner no.6 had borrowed Rs. 1,00,000/- from
th e com pl ai na nt an d it wa s not r ep ai d. On
26.07.2011 a complaint was lodged and the
petitioner no. 6 was advised to repay the amount.
He did not repay the amount. On 10.09.2011, the
complainant called petitioner no. 6 and asked the
money. The petitioner no. 6 told him that if the
complainant comes to Kadukothanahalli village he
would pay the amount. Accordingly, the
complainant, his uncle Krishna, relative Devaraju
and Umesh went to Kadukothanahalli village. At
that time, the petitioner nos. 1 to 5 and two others
assaulted the complainant and the others and

ABA No.272/2021 CNR No.GANG01-001340-2021 40 of 47

damaged the car. By that time, the petitioner no. 6
came there and instigated the petitioner nos. 1 to 5