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2014 DIGILAW 1861 (BOM)

Ravindranath S. Shelatkar v. State of Maharashtra

2014-08-22

ABHAY M.THIPSAY

body2014
Judgment : 1. Heard Mr. Dalvi, learned counsel for the Applicant. Heard Mrs. Pai, learned Additional P.P. for the respondent - State. Heard Mr. Merchant, learned counsel for the intervener. 2. In view of the submissions of the learned counsel, admitted; and by consent, taken up for final hearing forthwith. 3. By consent, calling for record and proceedings dispensed with. 4. The applicant is the accused no.1 in NDPS Special Case No.48 of 2011, pending before the Special Court under the NDPS Act at Mumbai. The Applicant had made an application for discharge which came to be rejected. Being aggrieved thereby the applicant has approached this Court by filing the present Revision Application praying that the order rejecting his discharge application as passed by the learned Judge of the Special Court on 28th June, 2013, be set aside and that the applicant be discharged from the said case. 5. Though such a wide prayer for discharge has been made, in the course of hearing, the learned counsel for the applicant submitted that he was not seeking a full discharge from the case but was seeking a discharge only in respect of certain offences for which a charge had been wrongly framed. His basic objection was to the charge as has been framed by the learned Judge. He submitted that by framing the said charge, the learned Judge has taken cognizance of the offences punishable under Sections 193 IPC, 195 IPC, 196 IPC, 200 IPC and 211 IPC also, apart from the offences punishable under the NDPS Act, Arms Act and Section 324 of the IPC. His contention is that cognizance of the offences punishable under Sections 193 IPC, 195 IPC, 196 IPC, 200 IPC and 211 IPC could not have been taken by the Court in view of the specific bar provided by Section 195 of the Code of Criminal Procedure. He submitted that the complaint, in the instant case, had not been made by the authority/authorities specified by Section 195 of the Code of Criminal Procedure and as such the cognizance of the alleged offences could not have been taken by the learned Judge. 6. The legal position that the cognizance of these offences could not have been taken without complaints from the proper authority has not been disputed before me. 6. The legal position that the cognizance of these offences could not have been taken without complaints from the proper authority has not been disputed before me. Once this is so, there would be no question of framing of charge in respect of these offences, is also not disputed. What Mr.Merchant, learned counsel for the intervener submitted is that the question of holding an inquiry under Section 340 of the Code of Criminal Procedure has not been ruled out by the learned Judge, and that there is every possibility that in future a complaint by the concerned Court with respect to the said offences would be lodged. 7. I have considered the position. Merely because such a possibility exists, the cognizance of the offences punishable under Sections 193 IPC, 195 IPC, 196 IPC, 200 IPC and 211 IPC as taken by the Special Court under the NDPS Act cannot be said to be legal. Needless to say that in the event of a complaint in respect of these offences being filed by the competent Court, the law would take its own course; but that does not mean that the charge in respect of these offences could be framed - in advance, so to say -by the learned Judge of the Special Court, waiting for a proper complaint to be received from the competent Court. 8. The cognizance of the offences punishable under Sections 193 IPC, 195 IPC, 196 IPC, 200 IPC and 211 IPC as taken by the Special Judge being in clear breach and violation of the mandatory provisions of Section 195 of the Code of Criminal Procedure is bad in law and cannot be sustained. The charge framed by him with respect to those offences, needs to be set aside. 9. Under the circumstances, the proper course, in my opinion, be to direct the learned trial Judge to reconsider the question of framing of charge with respect to the offences punishable under Sections 193 IPC, 195 IPC, 196 IPC, 200 IPC and 211 IPC, in the light of the provisions of Section 195 of the Code of Criminal Procedure and make necessary alteration in the charge that has been framed against the applicant, and naturally, against the other accused also. 10. In view of this, the revision application is partly allowed. 11. 10. In view of this, the revision application is partly allowed. 11. The learned trial Judge shall alter the charge framed against the applicant and the other accused by keeping the provisions of Section 195 of the Code of Criminal Procedure -and the bar created by it; and thereafter proceed with the trial expeditiously, in accordance with law. 12. The revision application is disposed of in the aforesaid terms. 13. The process of alteration of charge should be completed by the learned Judge within a period of one month from the receipt of this order.