rediff.com: Bombay HC to hear Thackeray case on Aug 8

The Bombay high court would hear on August 8 a petition filed by Maharashtra government seeking quashing of the order of a magistrate who had abruptly closed two prosecution cases filed against Shiv Sena chief Bal Thackeray and two others for alleged inflammatory articles in party's mouthpiece Saamna in early 1993.

Senior government counsel P R Vakil mentioned the matter this afternoon for urgent circulation before Justice Vishnu Sahai who decided to hear the arguments of the state and the respondents on August 8.

Vakil said he was pressing the matter for urgent hearing before the high court because the issue involved an important point of law which should be made known to police, politicians and members of the public so that they understand what the legal position was vis-a-vis the arrest of political bigwigs.

The petition, filed by the state yesterday, challenges the July 25 order of additional chief metropolitan magistrate B P Kamble who had closed criminal cases pending in Dadar police station against newspaper's editor Thackeray, executive editor Sanjay Raut and printer-publisher Subhash desai.

The petition also questions the magistrate's order of discharging all the accused from alleged offences registered against them under section 153 A IPC (inciting communal passions through words spoken or written).

The state's appeal argued that the magistrate considered the question of time limitation without having jurisdiction to go into it at the stage of remand itself. He erred in deciding that the case was time-barred and no application was filed for condonation of the delay, the appeal said.

The state has contended in its appeal that the impugned order was beyond the jurisdiction of the magistrate and also in excess of powers enjoyed by him because he had decided a matter which was not urged by the prosecution.

The police had sought custody of the accused but the court had gone into the merits of the case to discharge them at the stage of remand. The question of taking cognizance of the case arose only after the chargesheet was filed. On an application seeking remand, the court has either to grant custody of the accused or release him on bail, the state has pleaded.

In this case, the chargesheet had not been filed but only remand application was presented before the court. Even if a defective chargesheet was filed, the magistrate had no right to close the case. He could only refuse to take cognizance of the matter in such a case, the state further contended.

The government argued that the case was within the specified time-frame and not barred by time limitation. The sanction was applied way back in 1994 but was accorded only last month and therefore this period should be excluded for considering the time-frame of three years.


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