CENTRAL BUREAU OF INVESTIGATION Vs. VASHITHA RAMBHAU ANDHALE

JUDGEMENT

(1.) By judgment and order dated 26/6/2007, MCOCA Special Court, Pune, discharged Vashitha Rambhau Andhale, accused 55 (for convenience, "A-55") from MCOCA Special Case No.2 of 2003 commonly known as Telgi Stamp Case of Bund Garden Police Station, Pune. The Central Bureau of Investigation (for short, "the CBI") preferred the present appeal under Section 12 of the Maharashtra Control of Organized Crime Act, 1999 (for short, "the MCOCA") against the said order being aggrieved by the discharge of A-55. The Division Bench of this court (Dr. Radhakrishnan, J. and Smt. Roshan Dalvi, J.) heard this appeal and delivered separate judgments on 27/2/2008. While Justice Dr. Radha krishnan concurred- with the MCOCA Special Court and confirmed the discharge of A-55, Justice Smt. Roshan Dalvi set aside the discharge order and directed the MCOCA Special Court to frame charge against A-55 and proceed with the trial in accordance with law.

(2.) In view of the difference of opinion in accordance with section 392 of the Code of Criminal Procedure, 1973 (for convenience, "the Code"), the office placed this appeal before the Hon'ble the Chief Justice (Shri Swatanterkumar, J. as His Lordship then was) for appropriate orders. As directed by the Hon'ble the Chief Justice, this appeal is placed before me.

(3.) Learned counsel Mr. Thakare, who appears for the appellant and learned counsel Mr. Mundargi, who appears for respondent 1 - A- 55 are agreed on the scope of section 392 of the Code. My attention is drawn to several judgments on the scope of section 392 of the Code. It is not necessary to refer to all of them because they reiterate the same principles. I shall only refer to two judgments which will clearly indicate the scope of section 392 of the Code. In Tanviben Devitia v. State of Gujarat (1997) 7 SCC 156, the Supreme Court has observed that there is no manner of doubt that the third judge has a statutory duty under section 392 of the Code to consider the opinions of the two Judges whose opinions are to be laid before the third Judge for giving his own opinion on considerations of the facts and circumstances but the plain reading of section 392 dearly indicates that it is for the third Judge to decide on what points he shall hear arguments, if any, and it necessarily postulates that the third Judge is free to decide the appeal by resolving the difference in the manner, he thinks proper. The Supreme Court further observed that in the scheme of Section 392 of the Code, the view that the third Judge, as a rule of prudence or on the question of judicial etiqultte, will lean in favour of the view of one of the Judges in favour of the acquittal of the accused cannot be sustained.