Mumbai HC admits govt’s appeal in Thackeray case

However, Justice Vishnu Sahai refused to grant a stay on the operation of the order passed by additional Chief Metropolitan Magistrate B P Kamble. The judge also refused to expedite the hearings and asked State counsel P R Vakil to make an application to the Chief Justice in this regard. He added if both sides agreed, he would give a date the very next day.

The petition filed under Article 227 of the Constitution of India and Section 468 of the Code of Criminal Procedure, seeks to set aside and quash Magistrate Kamble’s judgement on July 25, 2000 on a remand application.

Kamble had discharged Thackeray, Saamna editor Sanjay Raut and publisher Subhash Desai in a common judgement and also terminated proceedings of the case.

Furnishing reasons for admitting the case, Justice Sahai said it was an “extremely arguable” matter and he was doing so prima facie on three grounds. But he said he would not record these in his ruling as it may prejudice the judge who hears the matter whenever it comes up for hearing. The first reason, he said, was that the magistrate misconstrued the word “cognisance” under Section 190 of the Code of Criminal Procedure (CrPC). “Cognisance in this case was based on a police report which is popularly called chargesheet. The magistrate was alive to the fact that the chargesheet is still to be submitted. Cognisance of the chargesheet can be taken later. Prima facie it could not be done,” observed Justice Sahai.

Secondly, he said, while the Magistrate ruled that prosecution is time-barred under Section 468 (limitation of time to take cognisance) of the Criminal Procedure Code, he has done so in isolation and not conjunctively with Section 470 (3) (exclusion of time-limit). If taken together, the periodbetween applying for sanction and the grant of sanction, would fall within the time-limit.

Thirdly, he said, the order was indecent on the grounds of propriety. The judge said the magistrate was dealing with a matter at a pre-cognisance stage and the entire order is not sustainable.

The situation before the magistrate was that the accused were arrested and produced before him, he added. He had three options: to place them under police custody, judicial custody or grant bail. “The magistrate did not exercise any of the three but straightaway under Section 468, which he could not take cognisance of as no chargesheet is filed, terminated the case,” he observed. He further added, “The reason of propriety arises such that justice should not only be done but also appear to be done.” Vakil countered, “We want justice to be done and not appear to be done.”

Vakil also asked the judge to stay the magistrate’s judgement which still remains in operation. Sahai refused saying it would not be done until the matter is disposed of.

“When I finally hear the matter I may take a different view of the case.” However Vakil persisted saying that there have been cases where this court and the Supreme Court have stayed the operation of judgements. Vakil added, “Here is a judgment which says offence is closed and the case is terminated on the presentation of a remand application. Daily, hundreds of remand applications and chargesheets are filed, even before the same magistrate. Let the police, the judicial magistrates know what to be in the interregnum.”

But Sahai did not relent. Vakil further pressed,“What should the police do if tomorrow they have to file a remand application where sanction is necessary? Do they have to follow similar guidelines of the magistrate’s order? Sahai answer was, “The public prosecutors represent the State and police and they should be vigilant.”

Vakil also prayed for passing a ruling for expeditious hearing. “At this rate, it will not come up for four years. The effect of the judgment was such that next day there was reaction from the press, electronic media and advocates,” he said.

Sahai said, “Normally I would not disclose the reasons for admission but considering the sensitivity of the matter I have done. Your perception is one thing, but half the legal world also thinks the impugned order is right. The principles apply to everyone, you will be granted nothing less.”

Vakil also asked the judge whether it would not be sufficient to pass some order in the interest of the public and the police if a judgement is contrary to the provisions of the court and even to the judgement of the highest court. Sahai answered, “The State should appoint first rate public prosecutors who know the law. In my view the correctness of the order is open to question and therefore warrants question.” Vakil said, What can the State or PP do if a magistrate passes such an order on a remand application? “That is why I said the State should appoint PPs who are well paid as the defence side. Have men of proven mettle and selected on merit. Posterity will be safe.”

Advocate Majid Memon submitted a intervention petition which was opposed by Vakil saying, “Whose benefit is he called? There should be no meddling with this matter. Strictly speaking even the respondents have no locus standi?” While dictating his order, Justice Sahai held that Memon’s intervention application be submitted and heard, including its locus standi, at the final hearing. The hearing went on for nearly an hour-and-a-half.