Case Note & Summary
The proceedings concerned an appeal filed by the Central Bureau of Investigation under Section 12 of the Maharashtra Control of Organized Crime Act, 1999, challenging the discharge of accused No. 55 (Vashitha Rambhau Andhale) from MCOCA Special Case No. 2 of 2003, commonly known as the Telgi Stamp Case. The MCOCA Special Court, Pune, had discharged the accused by order dated 26 June 2007. The CBI preferred an appeal before the Bombay High Court, which was heard by a Division Bench comprising Justice Dr. Radhakrishnan and Justice Smt. Roshan Dalvi. On 27 February 2008, the two judges delivered separate, conflicting judgments: Justice Dr. Radhakrishnan confirmed the discharge, while Justice Smt. Roshan Dalvi set aside the discharge and directed the MCOCA Special Court to frame charge against the accused. In view of this difference of opinion, the appeal was placed before a third judge under Section 392 of the Code of Criminal Procedure, 1973, as directed by the Hon'ble Chief Justice. During the hearing before the third judge, a preliminary objection was raised by senior counsel appearing for a respondent in a companion writ petition. He argued that the matter was governed not by Section 392 of the Code but by Clause 36 of the Letters Patent, which provides that when a Division Court is equally divided, the case shall be heard upon the points of difference by one or more other Judges, and the decision shall follow the majority opinion including those who first heard it. He contended that Section 5 of the Code saves special laws like clause 36, and that no specific provision to the contrary exists in the Code. On the other hand, the learned Advocate General, assisting the court, submitted that Section 392 is a precise, explicit, and definite provision that overrides clause 36, and that the Full Bench of the Bombay High Court in Queen Empress v. Dada Ana had already settled the issue by holding that Section 429 of the old Code (precursor to Section 392) overrules clause 36. The CBI adopted the Advocate General's arguments. The court analyzed the scope of Section 392 of the Code and Clause 36 of the Letters Patent, referred to Supreme Court decisions in Tanviben Devitia v. State of Gujarat and Sajjan Singh v. State of Madhya Pradesh on the powers of a third judge, and considered precedents on the saving of special laws. The judgment was pronounced on 14 July 2010, but the available extract does not record the final decision on the preliminary objection.
Headnote
A) Criminal Procedure - Procedure When Judges of Court of Appeal Are Equally Divided - Applicability of Clause 36 of the Letters Patent vis-à-vis Section 392 of the Code of Criminal Procedure, 1973 - Letters Patent (High Court) Clauses 36, 38; Code of Criminal Procedure, 1973, Sections 5, 392 - The court was seized of a preliminary objection that in an appeal under the Maharashtra Control of Organized Crime Act, 1999, where a Division Bench is equally divided, the reference to a third judge should be governed by clause 36 of the Letters Patent, which requires the third judge to decide only the specific points of difference, rather than section 392 of the Code, which permits a fresh hearing of the entire appeal. After examining the text and relevant precedents, the court noted the arguments that section 392 is a specific provision to the contrary that overrides clause 36, and that the Full Bench in Queen Empress v. Dada Ana had so held. The matter was listed for further hearing on merits of the discharge appeal after determination of the correct procedure (Paras 6-13).
Issue of Consideration
Whether the present matter is governed by clause 36 of the Letters Patent or by section 392 of the Code of Criminal Procedure, 1973, in the context of a difference of opinion in a Division Bench hearing an appeal against discharge under MCOCA.
Law Points
- Section 392 CrPC overrides Clause 36 of Letters Patent if specific provision to the contrary exists
- Section 5 CrPC saves special law unless contrary provision
- Third judge under Section 392 has power to hear entire appeal
- Letters Patent is still law in force
- Full Bench in Queen Empress v. Dada Ana held Section 429 (old) overrules Clause 36
