Captain Percy Meher Master vs The State of Maharashtra

Prasanna. B. Varale, J.—Admit. Heard finally by consent of the parties. Shri Nitin Rao, learned Additional Public Prosecutor waives notice on behalf of the respondent/State. Heard Shri A.A. Naik, the learned Counsel appearing on behalf of the petitioner and Shri Nitin Rao, the learned Additional Public Prosecutor on behalf of the respondent/State.

Shri A.A. Naik, the learned Counsel for the petitioner fairly submits that the controversy in the present petition can be resolved by granting an opportunity of hearing to the petitioner before the learned Magistrate and if such opportunity is granted, no prejudice would be caused to any of the parties. In support of his submission, the learned Counsel for the petitioner invites my attention to the documents namely the application for seeking discharge at Annexure-B filed by the petitioner; the copy of the roznama at Annexure-D page 165, Annexure-E pages 166, 167, 168 and 169. It is the submission of the learned Counsel for the petitioner that the petitioner, by filing an application before the learned Magistrate, sought personal exemption and the same was granted by the learned Magistrate vide order dated 16.03.2011. He further submits that on 01.04.2011, though, initially, it was recorded by the Court that the petitioner (accused before the learned Magistrate) was absent, subsequently, an application filed by the petitioner i.e. the accused for seeking exemption was granted. Shri Naik, the learned Counsel for the petitioner then by inviting my attention to Annexure-F i.e. the order passed by the Magistrate below Exh.39, submits that the learned Magistrate recorded that accused and his advocate were called absent, fixed for order and on 01.04.2011, the application came to be rejected recording the reason that the accused absent and the prosecution has made out the case against accused.

Shri A.A. Naik, the learned Counsel for the petitioner submits that as the petitioner and his counsel were totally unaware of the order passed by the learned Magistrate rejecting the application under a bona fide belief that the application for discharge is still pending before the Magistrate for consideration, submitted an application for exemption on 18.12.2013. The application was allowed by the learned Magistrate by recording that a last chance is granted to the applicant. Thus, the submission of the learned Counsel for the petitioner is that not only the petitioner, the learned Counsel for the petitioner but even the Court was under the impression that the application for seeking discharge was pending. The application of 18.12.2013 was moved by the petitioner for seeking exemption. On the backdrop of these facts, Shri Naik, the learned Counsel for the petitioner fairly submits that in stead of touching to the merits of the matter, if an opportunity of hearing is granted to the petitioner on his application for discharge and if the learned Magistrate is directed to pass the orders afresh, considering the backdrop of the present petition, no prejudice would be caused to any of the parties.

Per contra, Shri Nitin Rao, the learned APP for the respondent/State vehemently opposes the petition and submits that the petitioner has approached before this Court at a belated stage.

Perusal of the documents placed on record emerges that the present petitioner/accused along with the other accused is charged with Sections 406, 420, 467, 468, 471, 472 read with Section 34 of the Indian Penal Code. It seems that the petitioner, on various counts, approached this Court and as such prosecuting the matters at various forums. Perusal of the documents, on which the learned Counsel for the petitioner invites my attention, in my opinion, leads to conclusion of considerable merits in the submission of the learned Counsel for the petitioner. As it reveals from these documents that the application for seeking personal exemption was already granted by the learned Magistrate, on 01.04.2011, there was no question of the attendance of the petitioner. The learned Court below records that the learned Counsel for the petitioner/accused was absent. Thus the learned Counsel was also not heard by the Magistrate. The order passed on the application dated 18.12.2013 granting a last chance is also indicative of the fact that the party i.e. applicant/petitioner, the learned Counsel for the applicant and even the Court were under impression that the application for seeking discharge was pending before the Court.

On the backdrop of these facts, there is a considerable merit in the submission of the learned Counsel for the petitioner that the petitioner/applicant i.e. accused before the Magistrate, who had sought discharge by presenting application, lost the opportunity of hearing and without being heard either the applicant or the counsel representing the applicant, the application came to be rejected. The learned Counsel for the petitioner submits that the petitioner is ready to appear before the learned Magistrate through his Counsel on any date so as to show the bona fides that the petitioner is not prolonging the proceedings and further to show his bona fides that the petitioner seeks an opportunity of hearing and is subjected to whatever the orders passed by the learned Magistrate after hearing the petitioner with availing the liberty under the law to take necessary steps on the outcome of the order in the event passed by the learned Magistrate. Though it is true that the petitioner is approaching this Court challenging the order passed in the year 2011, i.e. at belated stage, the facts referred above cannot be lost sight and the application moved by the petitioner/applicant on 18.12.2013 and the order passed by the learned Magistrate clearly show that the petitioner, the Counsel and the Court were under the bona fide impression that the application for seeking discharge was still pending before the Court till 18.12.2013.

Considering all these facts, in my opinion, without touching to the merits of the matter, the ends of justice can be met by giving an opportunity of hearing to the petitioner before the learned Magistrate and also by fixing a time bound programme for the learned Magistrate so as to avoid any further delay in the proceedings. By adopting the above referred exercise, in my opinion, no prejudice would be caused to the other side i.e. State also. In the result, the order dated 01.04.2011 passed by the learned Magistrate is quashed and set aside. The learned Magistrate is directed to fix the date for hearing the petitioner on discharge application and preferably any date in the week commencing from 20th January, 2014 to 24th January, 2014 and the learned Magistrate after hearing the petitioner as well as the learned APP, may pass order in the week thereafter i.e. week commencing from 27th January, 2014 to 31st January, 2014. With these directions, the petition stands disposed of.