Bombay High Court
Sunil S/O. Shivaji Thorat vs The State Of Maharashtra on 4 February, 2020
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 787 OF 2019
IN
CRIMINAL APPEAL NO.295 OF 2019
Rahul Sanjay Shingade,
Age 25 years, Occupation Nil,
R/o Sonewadi Tq. Kopargaon
Dist. Ahmednagar. ...Applicant.
Versus
The State of Maharashtra
Through Police Inspector,
Shirdi Police Station Tq.
Rahata Dist. Ahmednagar. ...Respondent.
.....
Advocate for Applicant : Mr. S. B. Kadu.
APP for Respondent-State : Mr. P. K. Lakhotiya.
.....
WITH
CRIMINAL APPEAL NO. 295 OF 2019
Rahul Sanjay Shingade,
Age 25 years, Occupation Nil,
R/o Sonewadi Tq. Kopargaon
Dist. Ahmednagar. ...Appellant.
Versus
The State of Maharashtra
Through Police Inspector,
Shirdi Police Station Tq.
Rahata Dist. Ahmednagar. ...Respondent.
.....
Advocate for Appellant : Mr. S. B. Kadu.
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APP for Respondent-State : Mr. P. K. Lakhotiya.
.....
WITH
CRIMINAL APPEAL NO. 193 OF 2018
Sunil Shivaji Thorat,
Age 24 years, Occupation Nil,
R/o Dorhale Tq. Rahata Dist.
Ahmednagar. ...Appellant.
Versus
State of Maharashtra
Through Police Station officer,
Police Station Shirdi,
Dist. Ahmednagar. ...Respondent.
.....
Advocate for Appellant : Mr. S. S. Chilalrge.
APP for Respondent : Mr. P. K. Lakhotiya.
.....
WITH
CRIMINAL APPLICATION NO.3722 OF 2018
Narayan Namdeo Waikar,
Age 38 years, Occupation Agri.,
R/o Sonewadi Tq. Kopargaon
Dist. Ahmednagar. ...Applicant.
Versus
The State of Maharashtra,
Through Shirdi Police Station,
Tq. Rahata Dist.Ahmednagar. ...Respondent.
.....
Advocate for Applicant : Mr. A. K. Shejwal.
APP for Respondent : Mr. P. K. Lakhotiya.
.....
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WITH
CRIMINAL APPEAL NO. 56 OF 2019
Narayan Namdeo Waikar,
Age 38 years, Occupation Agri.,
R/o Sonewadi Tq. Kopargaon
Dist. Ahmednagar. ...Appellant.
Versus
The State of Maharashtra,
Through Shirdi Police Station,
Tq. Rahata Dist. Ahmednagar. ...Respondent.
.....
Advocate for Applicant : Mr. A. K. Shejwal.
APP for Respondent : Mr. P. K. Lakhotiya.
.....
CORAM : SMT.VIBHA KANKANWADI, J.
Date of Reserving the Order :
22-01-2020.
Date of Pronouncing the Order :
04-02-2020.
ORDER :
1. The Criminal Applications No.787 of 2019 and No.3722 of 2018 have been filed by the respective applicants - original accused for suspension of sentence and releasing them on bail pending appeal. All the appellants faced trial in Special (MCOC) Case No.03 of 2015 before Special Judge, Nasik. At the conclusion of the trial all the three accused persons have been convicted and following order has ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 4 CriApln 787-2019 + 4 been passed :
"1. Accused nos.(1) Narayan Namdeo Waikar, (2) Rahul Sanjay Shingade and (3) Sunil Shivaji Thorat are convicted for an offence punishable under Section 323 read with Section 34 of I.P.Code and are sentenced to suffer Rigorous Imprisonment for one year each and to apy fine of Rs.1000/- each (Rs. One thousand only), in default to suffer further Rigorous imprisonment for one month, each.
2. Accused nos.(1) Narayan Namdeo Waikar, (2) Rahul Sanjay Shingade and (3) Sunil Shivaji Thorat are further convicted for an offence punishable under Section 394 read with Section 34 of I.P.Code and are sentenced to suffer Rigorous imprisonment for five years each and to pay fine of Rs.5000/- each (Rs. Five thousand only), in default to suffer further Rigorous imprisonment for Three months, each.
3. (1) Narayan Namdeo Waikar, (2) Rahul Sanjay Shingade and (3) Sunil Shivaji Thorat are further convicted for an offence punishable under Section 3(1)(ii) of the Maharashtra Control of Organized Crime Act and are sentenced to suffer Rigorous imprisonment for five years each and to pay fine of Rs.5,00,000/- each (Rs. Five lakh), in default to suffer further Rigorous imprisonment for one year, each.
4. (1) Narayan Namdeo Waikar, (2) Rahul Sanjay Shingade and (3) Sunil Shivaji Thorat are further convicted for the offence punishable under Section 3 (4) of the Maharashtra Control of Organized Crime Act and are sentenced to suffer Rigorous imprisonment for five years each and to pay fine of Rs.5,00,000/- each, (Rs. Five lakh), in default to suffer furtgher Rigorous imprisonment for one year, each.
5. All the aforesaid substantive sentences of accused nos.1 to 3 shall run concurrently.
6. Set off be given to the accused nos.1 to 3 for the period of detention already undergone by them.::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 :::
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7. The seized currency notes, key of tempo, mobile hand set and Hero Honda motorcycle be returned to its respective owners, after the period of appeal is over."
2. Out of the three accused persons two accused persons have preferred the bail application with suspension of sentence.
3. At the outset it will have to be stated that, the learned Additional Public Prosecutor has raised objection in respect of jurisdiction of this Court. It has been submitted that, though the offence was registered with Shirdi Police Station District Ahmednagar, the learned Special Judge, Nasik is the designated Court under the Maharashtra Control of Organized Crime Act (hereinafter referred to as "MCOC Act" for the sake of brevity) for Ahmednagar District, therefore he tried the case and delivered the Judgment. Learned Additional Public Prosecutor relied on the Rule 2 of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 (hereinafter referred to as "Rules, 1960" for the sake of brevity), and submitted that, the presentation of the matters i.e. appeals, applications, references and petitions including the petitions for exercise of powers under Article 226 and 227 of the Constitution of India, is governed as per they are arising in the judicial districts. Therefore, when the present appeals are arising out of judicial ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 6 CriApln 787-2019 + 4 district of Nasik i.e. in view of pronouncement of judgment by Special Judge, Nasik which is not included in Rule 2 of Chapter XXXI of the Bombay High Court Appellate Side Rules, this Court has no jurisdiction to entertain the appeals as well as the applications. The appeals with applications may be presented before the Principal Seat at Bombay which has jurisdiction over the judicial district of Nasik. He placed reliance on the decision in, Haji Abdul Razak Yasim Patel v. Bara Imam Masjid Trust and others, reported in [2006 (1) Mh.L.J. 184]. It was observed in this case by the learned Single Judge at Principal (Shri. S. A. Bobade, J.) Seat that, "Writ petitions were filed to challenge an order passed by the Joint Charity Commissioner, Pune who had refused permission to Trust to alienate certain immovable properties. Wherever the property may be located, the parties would be entitled to approach the Principal Seat or the Bench of Court within whose ordinary territorial limits the impugned order has been passed, since clearly the impugned order would be a material part of the cause of action. As observed earlier, the locus of the properties would not, in such a case, determine the jurisdiction since the properties in respect of which the trust seeks permission to alienate may be located at several places within Maharashtra."
In this case, the property was situated at Ahmednagar which was within the jurisdiction of Joint Charity Commissioner, Pune Region ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 7 CriApln 787-2019 + 4 Pune. The order passed by Joint charity Commissioner, Pune Region Pune, was challenged in the writ petition and, therefore, by interpreting Rule 2 of Chapter XXXI of the Rules, 1960 the above said observations have been made, and it is held that, since the impugned order is passed at Pune, which is within the ordinary territorial limits of the Appellate Side of the Principal Seat at Bombay, the writ petitions would lie at Principal Seat. Further the decision is pointed out in, Alchemist Limited & Anr. v. State Bank of Sikkim and Others, reported in 2007 AIR (SC) 1812, wherein it was observed that, "43. From the aforesaid discussion and keeping in view the ratio laid down in catena of decisions by this Court, it is clear that for the purpose of deciding whether facts averred by the petitioner appellant, would or would not constitute a part of cause of action, one has to consider whether such fact constitutes a material, essential, or integral part of the cause of action. It is no doubt true that even if a small fraction of the cause of action arises within the jurisdiction of the Court, the Court would have territorial jurisdiction to entertain the suit/ petition. Neverthless it must be a part of cause of action, nothing less than than."
However, it is also argued that the decision is on the civil side and, therefore, taking into consideration "cause of action", the said decision has been given. Similar view was also taken in, Kusum Ingots ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 8 CriApln 787-2019 + 4 and Alloys Limited v. Union of India, reported in 2004 AIR (SC) 2321, wherein it was also observed that, "We must, remand ourselves that even if a small part of cause of action arises within the territorial jurisdiction of the High court, the same by itself may not be considered to be a determinative factor compelling the High Court to decide the matter on merit. In appropriate cases, the Court may refuse to exercise its discretionary jurisdiction by invoking the doctrine of forum convenienc."
4. Per contra, the learned advocate for applicants / appellants vehemently submitted that, the offence had taken place within the territorial jurisdiction of this Court since the Ahmednagar district is attached to this Court for the purposes of all the matters, especially the writ jurisdiction, this Court will have the jurisdiction. Merely because the case is tried by the Special Judge at Nasik, this Court will not loose its jurisdiction. They placed reliance on the order passed by this Court in, Bail Application No.135 of 2019, Akshay s/o Appasaheb Dabhade v. The State of Maharashtra, decided on 10th April 2019. Same point was raised before this Court and it was held by learned Single Judge (Shri V. K. Jadhav, J.) that, "In view of the observations made in paragraph No.37 and 38 in the decision of Nasiruddin :Ramai v. State Transport Appellate Tribunal :
State of U.P., reported in 1976 AIR (SC) 331 : 1975 (2) SCC 671, the preliminary objection raised by the learned Additional Public ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 9 CriApln 787-2019 + 4 Prosecutor is discarded."
Therefore, reliance has been placed by the learned advocates representing the appellants on the decision in case of Nasiruddin (Supra), paragraphs No.37 and 38 are therefore reproduced for the sake of convenience :
"37. To sum up. Our conclusions are as follows. First there is no permanent seat of the High Court at Allahabad. The seats at Allahabad and at Lucknow may be changed in accordance with the provisions of the order. Second, the Chief Justice of the High Court has no power to increase or decrease the areas in Oudh from time to time. The areas in Oudh have been determined once by the Chief Justice and, therefore, there is no scope for changing the areas. Third. the Chief Justice has power under the second proviso to paragraph 14 of the order to direct in his discretion that any case or class of cases arising in Oudh areas shall be heard at Allahabad. Any case or class of cases are those which are instituted at Lucknow. The interpretation given by the High Court that the word "heard" confers powers on the Chief Justice to order that any case or class of cases arising in Oudh areas shall be instituted or filed at Allahabad, instead of Lucknow is wrong. The word "heard"
means that cases which have already been instituted or filed at Lucknow may in the discretion of the Chief Justice under the second proviso to paragraph 14 of the order he directed to be heard at Allahabad. Fourth, the expression "cause of action" with regard to a civil matter means that it should be left to the litigant to institute cases at Lucknow Bench or at Allahabad Bench according to the cause of action arising wholly or in part within either of the areas. If the cause of action arises wholly within Oudh areas then the Lucknow Bench will ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 10 CriApln 787-2019 + 4 have jurisdiction. Similarly, if the cause of action arises wholly outside the specified areas in Oudh then Allahabad will have jurisdiction. If the cause of action in part arises in the specified Oudh areas and part of the cause of action arises outside the specified areas, it will be open to the litigant to frame the case appropriately to attract the jurisdiction either at Lucknow or at Allahabad. Fifth, a criminal case arises where the offence has been committed or otherwise as provided in the Criminal Procedure Code. That will attract the jurisdiction of the Court at Allahabad or Lucknow. In some cases depending on the facts and the provision regarding jurisdiction, it may arise in either place."
"38. Applications under Article 226 will similarly lie either at Lucknow or at Allahabad as the applicant will allege that the whole of cause of action or part of the cause of action arose at Lucknow within the specified areas of Oudh or part of the cause of action arose at a place outside the specified Oudh areas."
(Stress Supplied by me)
5. Further reliance has been placed on the observations and decision in, State of Maharashtra v. Rajendra Shantilal Nahar, reported in 2004 (2) Mh.L.J. 555, it has been observed that, "15............The cause of action that resulted into passing of the above impugned order of bail originated in Ahmednagar City and the investigation was carried out by the CID at Aurangabad. Though the Special Court is located at Nasik, the bail Order dated 11-2-2002 was required to be challenged before the Aurangabad Bench of this Court. It is well known that the College Tribunal and the School Tribunal for Ahmednagar District are located at Pune and the orders passed by ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 11 CriApln 787-2019 + 4 these Tribunals in any of the Appeals / Petitions originating from Ahmednagar District are challenged before the Aurangabad Bench. All these issues are required to be investigated into so as to avoid any recurrence of such instances which demonstrate nothing short of a casual approach on the part of the State Government in such serious, cases of economic offences."
6. It will not be out of place to mention here that, both the parties agree to a fact that either on civil side or criminal side though the pronouncements are from the Tribunal or the Court outside the jurisdiction of this Court, but which are in respect of the property or the subject matter within the territorial jurisdiction of this Court are challenged before this Court as well as sometimes they are taken to the Principal Seat at Bombay.
7. Another fact that has been pointed out that, Criminal Appeal No.439 of 2008 with other appeals were decided by the Division Bench of this Court on 21-07-2010. The said appeal came to be allowed and the appellants/ original accused were acquitted. In those appeals also the Judgment and order dated 30-07-2008 passed by Additional Special Judge, Nasik in Special Case No.1 of 2002, convicting the appellants for the offence punishable under Section 489-B, 489-C and 420 read with Section 120-B (1) of the ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 12 CriApln 787-2019 + 4 Indian Penal Code was under challenge. The offence had taken place within the jurisdiction of Ahmednagar District and the investigation was carried out by CID. The provisions of MCOC Act were also applied and, therefore, the case was filed before the Special Court at Nasik. Perusal of the said Judgment does not reveal that, any point regarding jurisdiction was raised by any of the parties especially by prosecution. In Criminal Application No.1525 of 2018 in Criminal Appeal No.378 of 2018 with companion applications in appeals, the Division bench of this Court on 10-04-2019 rejected the bail applications of the applicants/ original accused. The conviction therein was also by Special (MCOC) Judge in Special (MCOCA) Case No.1 of 2011 at Nasik, and those appeals are pending before this Court. In State of Maharashtra v. Rajendra shantilal Nahar's case (Supra) the Single Bench of this Court though observed that, "..........the College Tribunal and School Tribunal for Ahmednagar District are located at Pune and the appeals and petitions originating from Ahmednagar District are challenged before the Aurangabad Bench has not dealt with the point of jurisdiction."
8. From the above referred cases it can be seen that the decision in Alchemist Limited (Supra) was regarding the constitutional powers under Article 226 of the Constitution of India, and taking into ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 13 CriApln 787-2019 + 4 consideration the provisions of Code of Civil Procedure that the jurisdiction will have to be decided on the basis of place of "cause of action" and sometimes it may arise at different places. It was observed that, "All those Courts will have jurisdiction where the cause of action or part thereof has arisen and then it would be left to the aggrieved party/ petitioner to approach one of the Courts."
Similar view was then taken in case of Kusum Ingots and Alloys Limited (Supra), however in paragraph No.24 it has been observed that, ".....So far as the decision of this Court in Nasiruddin vs. State Transport Appellate Tribunal (Supra) is concerned it is not an authority for the proposition that the situs of legislature of a State or the authority in power to make subordinate legislation or issue a notification would confer power or jurisdiction on the High Court or a bench of the High Court to entertain petition under Article 226 of the Constitution......"
The decision in Nasiruddin:Ramai's case (Supra) is rendered by four Judge Bench of the Hon'ble Apex Court. Paragraphs No.37 and 38 of Nasiruddin's case (Supra) which were relied by this Court in order passed in case of Akshay Appasaheb Dabhade (Supra), would show that, the Hon'ble Apex Court considered that there was no permanent seat of High Court at Allahabad. Here, there is permanent Seat at Aurangabad of the High Court.
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9. Thus, at this stage there appears to be contrary decisions of the single Judge in Haji Abdul Razak Yasim Patel (Supra) and Akshay Appasaheb Dabhade (Supra). The former is under Civil proceeding whereas latter is under criminal. However both depend on interpretation of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960. In Nasiruddin's case (Supra), Hon'ble Supreme Court has held that the jurisdiction of Court at Allahabad or Lucknow in Criminal case would arise depending on place of offence or otherwise provided in Criminal Procedure Code. Therefore, interpretation of Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 is required to be made by larger Bench taking into consideration the contrary views taken as well as the fact that parties are approaching either Benches as per their convenience. This reference is required to be restricted to those appeals, applications or writ petitions in respect of Criminal matters, where the power to try the case is given to a Court which is outside the territorial jurisdiction of this Court. Hence, I deem it appropriate to refer the following issue to the Hon'ble the Chief Justice of the Bombay High Court for considering a reference to a larger Bench :
"Whether the appeals, applications or writ petitions ::: Uploaded on - 04/02/2020 ::: Downloaded on - 05/02/2020 06:40:23 ::: 15 CriApln 787-2019 + 4 arising out of Judgment and order passed by Special Court / Criminal Court established outside the judicial districts under Aurangabad Bench (when offence or offences are committed within the territorial limits of judicial districts under Aurangabad Bench) would lie before Aurangabad Bench or they would lie before Principal Seat at Bombay or any other Bench in reference to Chapter XXXI of the Bombay High Court Appellate Side Rules, 1960 ?"
10. The learned Registrar (Judicial) shall therefore place these matters under Chapter I Rule 8 of the Bombay High Court Appellate Side Rules, 1960 before The Hon'ble The Chief Justice of Bombay High Court.
(SMT. VIBHA KANKANWADI) JUDGE vjg/-
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