2024:BHC-GOA:683 vinita IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL WRIT PETITION NO. 50 OF 2021 Mr Tehzeen Shaikh, Wife of Mr Tabrez Shaikh, 34 years of age, married, Service, Indian National, r/o. G-3, Kamat Palace, Sim-

….Petitioner.

Khorlim, Mapusa, Bardez-Goa.

versus

1. State of Goa, through Public Prosecutor of High Court of Bombay of Goa, at Porvorim, Bardez, Goa.

2. Police Inspector/Incharge, Mapusa Police Station, Mapusa Bardez Goa.

3. Mr Rhys Da Costa, s/o. Mr William F. E.

Da Costa, 40 years of age, Proprietor of “79 The Pet Shop” Having its registered office at Shop No.D4, Rimjim Plaza, Mapusa, Goa. …..Respondents.

Mr Dinesh Naik and Mr Richal Shirodkar, Advocate for the petitioner.

Mr Shailendra G Bhobe, Public Prosecutor for respondent nos.1 and

2.

Ms Caroline Collassco, Advocate for respondent no. 3.

CORAM: BHARAT P. DESHPANDE, J.

DATE: 2^nd APRIL 2024 ORAL JUDGMENT.:

1.

Rule. Rule is made returnable forthwith.

2.

Heard finally with consent.

3.

Petitioner being aggrieved by the notice issued by the learned trial Court in Criminal Misc. Application No. 46 of 2020, preferred present petition with the following prayers:-

a. To call for records and proceedings and to issue Writ of Certiorari, order, or direction to quash and to set aside the Criminal Misc. Application bearing No.46/2020 pending before the Hon’ble District Judge-1 and Additional Sessions Judge at Mapusa against petitioner.

b. Till the pendency of the present Petition the proceeding in Criminal Misc. Application bearing No. 46/2020 pending before the Hon’ble District Judge-1 & Additional Sessions Judge at Mapusa be stayed.

c. Ad-interim ex-parte relief/s in terms of prayer clause(b) above.

d. May pass such other order or orders, relief/s as this Hon’ble Court may deem fit and proper in the interest of justice.

4.

Mr Naik, learned counsel appearing for the petitioner would submit that first of all there is no material produced in such proceeding against the petitioner and that the affidavit filed by the petitioner in Bail Application cannot be termed as evidence. He submits that proceeding filed before the trial Court bearing Criminal Misc. Application be quashed and set aside. While arguing the matter, Mr Naik claimed that notice issued to the petitioner needs to be quashed and set aside for the simple reason that in order to conduct an inquiry under Section 340 of Cr.P.C., presence of the petitioner who is considered to be a proposed accused is not necessary. He submits that the petitioner on the basis of such notice is unnecessarily asked to appear and file a reply.

5.

Mr Naik while placing reliance in the case of Aarish Asgar Quereshi Vs Fareed Ahmed Quereshi and another,, [2019)18 SCC 172] would claim that proceeding needs to be closed as the affidavit filed by the petitioner cannot be termed as evidence for the purpose of taking action under Section 195(1)(b) of Cr.P.C.

6.

Per contra, learned Public Prosecutor Mr S. G. Bhobe, appearing for the State would submit that first of all the petitioner being proposed accused in Criminal Misc. Application No. 46/2020 ought not to have been summoned by the Court as the said Court is required to conduct a preliminary inquiry only to find out whether there is any material to proceed under Section 195 of the Cr.P.C. and in such proceeding appearance or participation of the proposed accused is unwarranted.

7.

Mr Bhobe, while placing reliance in the recent judgment of the Apex Court in the case of State of Punjab Vs Jasbir Singh, would submit that a reference to three Judges Bench is answered

2 Criminal Appeal No. 335 of 2020 decided on 15.9.2022

specifically by relying upon the Constitutional Bench judgment in the case of Iqbal Singh Marwah Vs Meenakshi Marwah.

8.

Learned counsel Ms C. Collasso appearing for the respondent no.3 while supporting the contention raised by Mr Bhobe would submit that impugned notice needs to be quashed and set aside. However, other prayers of the petitioner cannot be entertained at this stage.

9.

Rival contention fall