CHHATRU SHOBRAJ TALERAJ Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS matter was placed before us on March 7, 1978, and we directed notice before admission to be issued to the State. It appears that the matter was so placed before this Bench because of the order made by the learned single Judge in a similar application) in Ratan Hiranand Khatri v. The State of Maharashtra (1976) Criminal Application No. 2659 of 1976. The learned single Judge appears to have made that order for two reasons, firstly, because the public prosecutor appearing for the State raised a point that every application under Section 482 of the Code of Criminal Procedure should be placed for hearing before the division Bench and not before single Judge and secondly, because the office informed that all applications under Section 561A of 1898 Code as well under Section 482 of 1973 Code were being placed for orders before division Bench and not before a single Judge. It is indeed clear from that order that the learned single Judge has not made any reference as such to be decided by larger Bench.

(2.) THIS application purporting to be under Section 482 of the Code of Criminal Procedure is filed by original accused Nos. 1, 2, 3, 4, 5, 8 and 9 complaining that Criminal appeal No. 15 of 1975 was disposed of against the petitioners without offering hearing to them or without these accused having real opportunity of being heard and it purports to invoke inherent powers of the Court with regard to the decision rendered in the said appeal. The said appeal was filed by the State against the acquittal of the accused under Section 12(a) of the Bombay Prevention of Gambling Act recorded by the Metropolitan Magistrate, 28th Court, Esplanade, Bombay, in Case No. 751/P of 1973. As per Rules of this Court (The Bombay High Court Appellate Side Rules, 1960) application for leave to appeal came for hearing and was placed before the single Judge, it being the matter specifically covered by Rule 2II (e) of chap. I. The learned single Judge granted leave on January 7, 1975. Eventually, it appears that after the accused were served, the matter came up for hearing before the learned single Judge and the Court presided over by the learned single Judge (Sapre J.) decided the same and passed a judgment of conviction dated January 18, 1976. Thus, Criminal Appeal No. 15 of 1975 was allowed in which the present applicants stood convicted. As stated above, this application is filed on July 27, 1977, with a prayer that the said appeal be re -heard after setting aside the judgment of conviction.

(3.) WE heard the learned Counsel for both the sides for considerable time. The debated disagreement between them as far as the narrow question that falls for consideration is that the nature of the application would determine the jurisdiction and power to deal with the same and not the fact that appeal in this Court was heard and decided by any particular Bench or Court. It is contended for the State by Mr. Kotwal that there being a practice, the application should always be dealt with by division Bench though it may relate to the judgment delivered by the learned single Judge of this Court. On the other hand, Mr. Gumaste contends that inherent power of the Court, of necessity, is available to the Court exercising the jurisdiction and the single Judge is very much the Court and mere practice would not affect the jurisdiction of the single Judge.