State files plea against magistrate’s order in Thackeray case

On July 25, Kamble discharged newspaper editor Thackeray, executive editor Sanjay Raut and publisher Subhash Desai on the grounds that that the case against Thackeray for his alleged inflammatory writings in Saamna in 1993 was time-barred.

In his order, Kamble observed that the offence registered against the accused under section 153 A IPC (inciting communal passions through words spoken or written) was barred by time limit under section 468(2)(C) of the Criminal Procedure Code. Hence the court could not take cognizance of cases. The magistrate also pulled up the prosecution for not being able to complete investigations within the specified three years and shot down the Government’s plea for condoning delay in granting the sanction.

State Government in its petition has pointed out that impugned order was beyond jurisdiction of magistrate and also in excess of powers enjoyed by him. Magistrate had decided a matter which was not put forth by prosecution and was done merely based on a remand application.

The State contends that it is a settled position in law that the question of taking cognizance of the case could arise only after chargesheet was filed under section 190 of CrPC. At stage of remand application, a magistrate has either to remand the accused to custody or release him on bail, it added. In this case, the chargesheet had not been filed but only remand application was presented before court.

Further, petition says that presuming that chargesheet was presented and found to be defective, magistrate had no right to close the case. He could only refuse to take cognizance of the matter in case of defective chargesheet, the petition adds.

The magistrate had considered the question of time limitation without possessing any jurisdiction to go into it at the stage of remand itself, adds the petition. Magistrate had erred in deciding that the case was time-barred and that no application was filed for condonation of the delay. The petition also argues that the case was within specified time frame and not barred by time limit. The sanction was given in 1994 but was accorded only last month. Therefore, period in between should be excluded for considering time frame of three years, it prayed.