MODILAL KALURAM KACHHARA AND Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This writ petition under Article 227 of the Constitution of India and Section 482, Cr.P.C. has been filed by the petitioner, who is the accused No. 1 in Criminal Case No. 1278-P of 1987 pending before the Additional Chief Metropolitan Magistrate, 11th Court Kurla, Bombay, (presided over by Shri L. D. Motwani), for setting aside the order dated 30th June, 1988 passed by the Additional Sessions Judge, Greater Bombay, rejecting his Criminal Revision Application No. 145 of 1988 whereby he had challenged the order dated 25th April, 1988 passed by the Chief Metropolitan Magistrate, Esplanade, Bombay, in Criminal Case No. 20/TA of 1988 rejecting his application for the transfer of the criminal case from the 11th Court, Kurla, Bombay, to some other Court.

(2.) The facts giving rise to this petition are as under. There is a jewellery shop known as Madhuram Jewellers at Chembur, Bombay. On the night between 5th and 6th May, 1987 house breaking and theft of gold ornaments and cash took place at the shop of Madhuram Jewellers. Gold ornaments and cash worth more than Rs. 6,00,000/- were stolen. One Bhagwanlal Narayanlal Kumavat, who was an employee of Singhavi Jewellers - sister concern of Madhuram Jewellers, was arrested in connection with this offence on 24th July, 1987. It transpired during investigation that the theft was committed by the said Bhagwanlal at the instance of the petitioner accused No. 1 and hence the accused No. 1 was arrested on 8th August, 1987. Ornaments worth more than Rs. 2,75,000/- alleged to have been stolen from the shop of Madhuram Jewellers were recovered from the shop of the accused No. 1 on 10th August, 1987 and on 12th August, 1987 gold ornaments weighing 300 Gms. were recovered at his instance. Stolen property worth more than Rs. 4,68,000/- was recovered from the accused No. 1. The said Bhagwanlal, while in the police lock-up, committed suicide on 20th August, 1987. The Chembur police during investigation also arrested the other accused, namely, accused Nos. 2 to 4. The accused No. 4 Bhimsingh alias Zapatya was the watchman at Trimurti Building where the said Singhavi Jewellers was housed. Some stolen property was recovered from the accused No. 4. The other two accused, namely, accused Nos. 2 and 3, are the relatives of the accused No. 4 and are alleged to have assisted him in the commission of the crime. The accused No. 1 was released on bail. The accused Nos. 2 to 4 were also granted bail, but they could not avail of the same and they are in custody since their arrest. While the Chembur police were investigating into the crime, the accused No. 1 filed Criminal Writ petition No. 897 of 1987 in this Court (who is also the accused No. 1 in the present writ petition) for enquiry into the death of the said Bhagwanlal in the police lock-up by the Central Bureau of Investigation (C.B.I.), Bombay. He also prayed therein that the investigation in C.R. No. 166 of 1987 registered at Chembur Police-Station should also be handed over to the C.B.I. This Court on 16th December, 1987 directed an enquiry into the death of the said Bhagwanlal by the C.B.I. The request of the accused No. 1 to hand over the investigation of C.R. No. 166 of 1987 by the Chembur Police Station to the C.B.I. was not granted.

(3.) The charge-sheet against the petitioner-accused No. 1 and the other accused, namely, accused Nos. 2 and 3, was presented in the Court of the learned Additional Chief Metropolitan Magistrate, 11th Court, Kurla, Bombay (hereinafter for the sake of brevity referred to as "the learned trial Magistrate"), on 17th September, 1987. On the same day copies of police papers were furnished to the accused and the matter was adjourned to 1st October, 1987. On 1st October, 1987 the accused No. 1 applied for stay of the proceedings on the ground that he had filed a writ petition in this Court for making over of C.R. No. 166 of 1987 by the C.B.I. and that the investigation into the death of the aforesaid Bhagwanlal Narayanlal Kumavat in the police lock-up was pending in this Court in Criminal Writ Petition No. 897 of 1987. The learned Assistant Public Prosecutor was asked to give his say. He submitted his say on 14th October, 1987, to which date the case was adjourned on 1st October, 1987. The learned trial Magistrate did not grant the request of the accused No. 1 mentioned in his order that the matter was fixed for framing of charge and after the charge was framed, the matter naturally would be adjourned for hearing and the accused No. 1 could bring stay order from this Court. On that day learned trial Magistrate framed charge. It was explained to the accused and the accused pleaded not guilty. The learned trial Magistrate directed summonses to be issued to witnesses and adjourned the case for hearing to 28th October, 1987. Criminal Writ Petition No. 897 of 1987 filed by the accused No. 1, as stated earlier, was allowed to the extent of enquiry into the death of the said Bhagwanlal by the C.B.I., and the request of the accused No. 1 to hand over the investigation in this crime to the C.B.I. was granted. After framing charge the matter was adjourned to 28th October, 1987. On that day supplementary charge-sheet, being No. 1507/P of 1987, was filed and the case was adjourned for charge against the accused No. 4 Bhimsingh alias Zapatya to 11th November, 1987. On 11th November, 1987 charge against the accused No. 4 was framed and was explained to him. He pleaded not guilty. His plea was recorded and the case was adjourned to 19th November, 1987 for hearing. On 19th November, 1987 the case was adjourned to 2nd December, 1987. The accused No. 1 filed Criminal Revision Application No. 60 of 1988 in this Court against the charge framed by the learned trial Magistrate against him. That petition was disposed of an the same day on which it was admitted, that is, on 2nd March, 1988. The learned Public Prosecutor Mrs. Manjula Rao fairly conceded that there was no material to sustain framing charge for the offence under Sections 379 and 109, I.P.C. against the accused No. 1, and hence that charge was quashed. Mr. A. G. Sabnis, learned Counsel for the accused No. 1, has no objection if the trial proceeded against the accused No. 1 on the second charge, that is, for the offence under Section 411, I.P.C. Accordingly, the order to proceed with the trail on the second charge against the accused No. 1 was passed and the rule was made absolute accordingly.