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mst
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1170 OF 2008
IN
CRIMINAL APPLICATION NO.2081 OF 2008
IN
CRIMINAL APPEAL NO.821 OF 2008
WITH
CRIMINAL APPLICATION NO.1171 OF 2008
IN
CRIMINAL APPLICATION NO.2082 OF 2008
IN
CRIMINAL APPEAL NO.824 OF 2008
WITH
CRIMINAL APPLICATION NO.1172 OF 2008
ig IN
CRIMINAL APPLICATION NO.2083 OF 2008
IN
CRIMINAL APPEAL NO.825 OF 2008
Good Value Marketing Company
Limited and another Applicants
versus
Montex Corporation & another Respondents
Mr.Subhash Jha i/by M/s.Law Global for the
applicants.
Mr.N.K.Thakore with Prakash Naik for respondent
no.1.
Mr.J.P.Yagnik, APP for the State in Application
No.1170 of 2008.
Miss A.J.Javeri, APP for the State in
Application No.1171 of 2008.
Mr.Y.S.Shinde, APP for the State in
Application No.1172 of 2008.
CORAM : A.S.OKA, J.
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DATE : 30th January 2009
JUDGEMENT :
1. The submissions of the learned counsel for
the parties have been heard. The facts of
these three applications are more or less
similar. Hence, for the sake of convenience, I
am referring to the facts in Criminal
Application No.1170 of 2008. The applicants
are the accused in a complaint filed by the
first respondent alleging commission of offence
under section 138 of the Negotiable Instruments
Act, 1881 (hereinafter referred to as “the said
Act of 1881”). The learned Magistrate
acquitted the applicants in this application.
The first respondent filed Criminal Application
no.2081 of 2008 in this Court invoking sub
section 4 of section 378 of the Code of
Criminal Procedure, 1973 (hereinafter referred
to as “the said Code of 1973”). The said
application was heard on 28th July 2008. This
Court granted leave and admitted the appeal.
This Court directed that an action be taken
under section 390 of the said Code of 1973.
The prayer in this application is for recall of
the said order dated 28th July 2008 and for a
direction to place the application for leave
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for re-hearing. As the learned Judge who
passed the order dated 28th July 2008 is not
available at Mumbai, by administrative order
dated 26th November 2008, these applications
were ordered to be placed before the regular
Court.
2. The learned counsel for the applicant
submitted that a special leave under sub
section 4 of section 378 of the said Code of
1973 cannot be granted without giving an
opportunity of being heard to the accused. His
submission is that grant of leave results in
admission of the appeal against acquittal which
is invariably followed by an action under
section 390 of the said Code of 1973. He
submitted that by grant of leave and admission
of an appeal against acquittal, the rights of
the accused are vitally affected and,
therefore, it was necessary for this Court to
have issued a notice to the applicants before
granting the leave.
3. He submitted that the Apex Court has
repeatedly held that when an authority takes an
action by which rights of an individual are
affected, the principles of natural justice
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will have to be read in the statutory
provisions. He submitted that the Apex Court
has now held that the principle of natural
justice “audi alteram partem” apply even to the
administrative orders having the civil
consequences. He placed reliance on decisions
of the Apex Court in the case of Canara Bank
vs. V.K.Awasthy ([2005]6-SCC-321), Rajesh
Kumar and others vs. Dy.Cit and others
([2007]2-SCC-181 and the State of Maharashtra
and others Vs. Jalgaon Municipal Council and
others
([2003]9-SCC-731) on this aspect. He
submitted that as the rule of “audi alteram
partem” has to be read in the statute under
which a quasi judicial authority or an
administrative authority passes an order
involving civil consequences, surely the said
rule will have to be read in sub section 4 of
section 378 of the said Code of 1973 while this
Court exercises the power of grant of special
leave. He submitted that section 378 itself
makes a distinction between a leave which is
granted in an appeal preferred by the State and
a special leave which is required to be granted
for preferring an appeal against the acquittal
by a complainant in a private complaint.
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4. He invited my attention to the provisions
of section 473 of the said Code of 1973 which
confers power on the Court to extend the period
of limitation. He submitted that the Apex
Court in the case of State of Maharashtra vs.
Sharadchandra Vinayak Dongre and others
([1995]1-SCC-42) has held that the principles
of audi alteram partem will have to be read in
the said provision. He also placed reliance on
the decision of the Apex Court in the case of
Mangilal vs. State of M.P. ([2004]2-SCC-447).
5. Lastly he submitted that this Court could
not have passed an order directing an action
under section 390 of the said Code of 1973. He
submitted that it is not mandatory in every
case where special leave or leave has been
granted under section 378 of the said Code of
1973 to direct that an action under section 390
of the said Code of 1973 should be initiated.
He submitted that in the case of an appeal
against an order of acquittal for offence
punishable under section 138 of the Negotiable
Instruments Act, 1881, it is not at all
necessary to issue a direction for action under
section 390 of the said Code of 1973. He
submitted that the result of mechanically
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passing an order for an action under section
390 of the said Code is that a warrant will be
executed against the accused who is already
acquitted and in a given case he may be
detained though the offence for which he was
prosecuted may be a non cognizable and bailable
offence. He, therefore, submitted that atleast
that part of the direction issued by this Court
directing an action under section 390 of the
said Code of 1973 be set aside or recalled.
6. The learned
ig counsel for the first
respondent opposed the prayer by submitting
that once a leave is granted and the appeal is
admitted, there is no power under the said Code
of 1973 vesting in this Court for reviewing or
recalling its own order. He submitted that
even by exercising the power under section 482
of the said Code, the aforesaid order of this
Court granting leave cannot be recalled. He
submitted that an appeal against the acquittal
is available on law as well as on facts and,
therefore, this Court has rightly granted the
leave. He submitted that action under section
390 of the said Code has already been completed
and the applicants have furnished bail and,
therefore, now it is not necessary to interfere
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with that part of the order. He fairly stated
that the first respondent had not prayed for an
action under section 390 of the said Code,
however, this Court thought it fit to issue
such a direction. He submitted that no
interference is called for.
7. I have carefully considered the
submissions. The well established legal
position is that as far as an admission of the
appeal is concerned, it is always a matter
between
the Appellate Court and the appellant.
A respondent to the appeal has no right of
hearing at the stage of admission. It is only
when the Appellate Court thinks it fit to issue
a notice before admission or a show cause
notice calling upon the respondent to show
cause as to why the appeal shall not be
admitted, the respondent can claim a right of
being heard at the stage of admission of the
appeal. Under section 378(1) of the said Code
a Public Prosecutor can present an appeal to
the Court of Sessions from an order of
acquittal passed by a Magistrate in respect of
a cognizable and non-bailable offence. Under
the same sub-section it is provided that the
State Government may in any case direct the
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public prosecutor to present an appeal to the
High Court from original or appellate order of
acquittal passed by any Court other than the
High Court (not being an order passed on an
appeal preferred against acquittal to the Court
of Sessions) or order of acquittal passed by
the Court of Sessions in revision. Sub section
3 provides that an appeal to the High Court
under sub section 1 of section 378 shall not be
entertained except with the leave of the High
Court. Sub section 4 provides that if such an
order of
acquittal is passed in any case
instituted upon a complaint, the complainant is
entitled to apply to the High Court for grant
of special leave to appeal from the order of
acquittal. When a public prosecutor desires to
appeal against an order of acquittal, he has to
apply for grant of leave and when a complainant
in private complaint desires to appeal against
an order of acquittal, he has to apply for a
special leave. Grant of leave or special leave
by this Court may result in admission of the
appeal against acquittal. Leave or special
leave is granted by this Court after examining
the merits of the case. Leave or special leave
is granted when a case is made out by the
applicant. Section 385 of the said Code
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provides that when an appeal against acquittal
is not dismissed summarily by this Court, the
Court is enjoined to cause notice of the time
and place at which such an appeal will be heard
to be given to the accused. Clause (a) of
section 386 of the said Code provides that in
an appeal from order of acquittal, the
Appellate Court may reverse such an order and
direct that further enquiry be made or that the
accused be retried or committed for trial, as
the case may be, or find him guilty and pass
sentence
on him according to law. Thus, from
the scheme of the provisions of Chapter-XXIX of
the said Code, it appears that after grant of
leave or special leave, if an appeal against
acquittal is not summarily dismissed, under
section 385 of the said Code this Court is
enjoined to issue notice of the hearing of the
appeal to the accused. As stated earlier, the
law is well settled. There is no right of
audience available to a respondent at the stage
of admission of an appeal and the admission of
an appeal is always a matter between the
appellant and the Court. An order admitting an
appeal against the order of acquittal is not an
adverse order against an accused. Grant of
leave or special leave precedes the admission
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of an appeal. If a respondent has no right of
audience at the stage of admission of an appeal
against the order of acquittal, it is not
possible to say that he has a right of hearing
at the stage of grant of leave or special
leave. It is, therefore, very difficult to
accept the submission of the learned counsel
for the applicant that the principles of
natural justice or principles of audi alterem
partem will have to be read in sub section 3
and sub section 4 of section 378 of the said
Code
of 1973 so as to give right of hearing to
a respondent-accused at the stage of grant of
leave or at the stage of admission of an appeal
against acquittal.
8. Reliance placed by the learned counsel for
the applicants on the decision of the Apex
Court in the case of State of Maharashtra vs.
Sharadchandra Vinayak Dongre and others (supra)
will be of no help to the applicants. The Apex
Court was dealing with the power of the
Criminal Court under section 473 of the said
Code of 1973 to extend the period of limitation
or to condone the delay. Right of hearing to
the opposite party in such a case has been read
in the statute. The reason is that by virtue
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of lapse or expiry of period of limitation
provided under the said Code of 1973, a right
is accrued in favour of the accused and,
therefore, before the delay is condoned and/or
the period of limitation is extended, the
accused is required to be heard. Similarly,
the decision of the Apex Court in the Case of
Mangilal (supra) will not help the applicant as
the question therein was as regards grant of
compensation under section 357 of the said
Code.
9. In the case of Chandrappa vs. State of
Karnataka ([2007]4-SCC-415) the Apex Court held
that under the said Code there is no
limitation, obstruction or condition on
exercise of appellate power and the Appellate
Court has full power to review, reappreciate
and reconsider the evidence upon which the
order of acquittal is founded. The Appellate
Court on evidence before it may reach its own
conclusion both on law as well as on facts.
The Apex Court, however, held that when it
comes to Appellate Court interfering with the
order of acquittal in an appeal against
acquittal, the Court has to bear in mind that
the presumption of innocence available to an
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accused is further strengthened by an order of
acquittal. The Apex Court has also held that
the Appellate Court has to bear in mind that if
two reasonable conclusions are possible on the
basis of evidence on record, the Appellate
Court should not disturb the finding of
acquittal recorded by the Trial Court.
10. Thus, the conclusion is that no right of
hearing can be read in the said Code in favour
of an accused at the stage of grant of leave or
special leave
under sub section 3 or sub
section 4 of section 378 of the said Code of
1973. No right of hearing in favour of an
accused can be read into the statute while this
Court considers the question of admission of an
appeal against acquittal. An accused is
entitled to notice only under section 385 of
the said Code after this Court comes to the
conclusion that the appeal cannot be summarily
dismissed by exercising the power under section
384 of the said Code. It is needless to say
that this Court always has a discretion of
issuing a notice before admission or a show
cause notice on application for grant of leave
or special leave wherever this Court desires
that the accused should be heard. In such a
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case naturally the accused will get audience
before grant of leave and admission of the
appeal. Therefore, the first submission made
by the counsel for the applicants will have to
be rejected.
11. In the present case it is pointed out that
an action under section 390 of the said Code
has been already taken and the applicants have
already furnished bail bonds. Nevertheless, I
am dealing with the legal submissions made by
the counsel
igappearing for the applicant.
Section 390 of the said Code of 1973 read
thus:-
“S.390. Arrest of accused in appeal from
acquittal.-
When an appeal is presented under section
378, the High Court may issue a warrant
directing that the accused be arrested
and brought before it or any subordinate
Court, and the Court before which he is
brought may commit him to prison pendingthe disposal of the appeal or admit him
to bail.”
12. The section uses the word “may” which
indicates that this Court has a discretion
either to direct an action under section 390 of
the said Code of 1973 or not to direct such an
action. A Division Bench of this Court in the
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case of A.H.Satranjiwala vs. The State of
Maharashtra (LXXIV-Bom.L.R.-742) had an
occasion to consider the provisions of Section
427 of the Code of Criminal Procedure, 1898
(hereinafter referred to as “the old Code”).
The said section reads thus :-
“When an appeal is presented under
section 411A, sub-section (2), or section
417, the Court may issue a warrant
directing that the accused be arrested
and brought before the Court….”
Section
section
427
390
of
to
the old Code
the said Code of
is similar
1973.
to
The
Division Bench held that it is the discretion
of the High Court to exercise the power under
section 427. This Court held that section 427
is not meant for the protection of the accused
but it is to ensure that the accused against
whom an appeal has been filed may not abscond
during pendency of the appeal. This Court
further observed that it must be also
appreciated that situation is altogether
different in the course of the original
criminal trial and during the hearing of an
appeal because during the trial a Court would
be entitled to examine the accused at any stage
of evidence and his presence might, therefore,
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be required at any stage. Whereas, in an
appeal, the hearing of the appeal would
normally be proceeded with on the basis of the
record. Thus, what has been held is that it is
in the discretion of this Court to exercise
power under section 427 of the old Code and it
is not necessary that in every case in which an
appeal against acquittal is admitted that
procedure under section 427 of the old Code
should be followed. As held by the Division
Bench, the object of section 390 of the said
Code is to ensure that the accused against whom
an appeal has been filed may not abscond during
pendency of the appeal. The object is of
ensuring the presence of the accused before the
Appellate Court. If this is the object of
section 390, then it is obvious that the word
used “may” in the section cannot be construed
as “shall”. Therefore, in every case in which
an appeal against acquittal is admitted, the
action under section 390 will not automatically
follow. The action under section 390 has
drastic consequences. A warrant is served on
the accused who has been already acquitted.
There are instances where bail was either
denied to the accused or was belatedly granted.
As a result, the accused who were already
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acquitted remained in custody.
13. Therefore, after admission of an appeal
against an order of acquittal it is for this
Court to exercise the discretion under section
390. The exercise of discretion will depend on
the nature of the offence alleged, the gravity
of the offence and the conduct of the accused
as reflected from the record of the case. Only
by way of an illustration a reference can be
made where an appeal against acquittal is filed
against an
order of acquittal of the accused
under section 138 of the said Act of 1881. The
offence is a bailable offence. In a given case
where this Court finds that the accused has a
fixed place of residence and that he has
regularly attended the Trial Court and has
co-operated for trial, it may not necessary to
initiate an action under section 390 of the
said Code. There are cases where a
respondent-accused is represented by an
advocate in an appeal against acquittal who
after admission of an appeal waives service of
notice of appeal. In such a case, it may not
be necessary for this Court to pass an order
directing an action under section 390 of the
said Code. The exercise of discretion will
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depend on combination of various factors.
14. There is one more aspect of the matter.
The power of this Court to issue warrant under
section 390 of the said Code of 1973 is not
confined to a stage when appeal against
acquittal is admitted. In a case where this
Court finds that the notice is issued under
section 385 of the said Code and the accused is
evading service of notice, this Court can
exercise power under section 390 of the said
Code
for achieving the object of ensuring that
the accused does not abscond. In a given case
when an appeal against an order of acquittal is
placed for final hearing and the Court finds
that the presence of the accused is necessary,
even at that stage also this Court can exercise
the power under section 390 of the said Code of
1973. Thus, the power under section 390 of the
said Code of 1973 can be exercised at any stage
during the pendency of an appeal against
acquittal.
15. The learned counsel for the applicants
submitted that on the basis of action under
section 390, there are cases where an accused
who is acquitted is put behind the bars as he
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is not enlarged on bail. Section 390
contemplates that when action is taken under
section 390, the accused can be arrested and
brought before this Court or any subordinate
Court. The section further provides that the
Court before which he is brought may commit him
to prison pending the disposal of the appeal or
admit him to bail. Thus, when pursuant to an
action under section 390 of the said Code, an
accused is brought before a subordinate Court,
the said Court has ample power to enlarge the
accused on
bail. On plain reading of the
section it is obvious that the concerned Court
subordinate to this Court need not be under an
impression that merely because an order is
passed by this Court of issuing warrant, the
accused should not be admitted to bail and he
should be taken in custody. The said Court has
a power to admit the accused to bail. When an
accused is brought before a Court subordinate
to this Court on the basis of an action under
section 390 of the said case, normally the
accused should be enlarged on appropriate bail
unless there are extraordinary circumstances or
unless there is a direction of this Court to
that effect. The subordinate Court before
which the accused is produced must keep it in
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mind that the accused produced before it is
already acquitted.
16. At this stage it will be necessary to
refer to a decision of Division Bench in the
case of Prema Bangar Swamy vs. State of
Maharashtra and others (2004-Cri.L.J.-1296). I
find that the certain important directions have
been given by the Division Bench of this Court
on this aspect which are not at all implemented
by the registry. The said directions are
consistent with
ig the object of the section to
ensure that the accused does not abscond. In
paragraph 25 of the said decision this Court
observed that when pursuant to action under
section 390 of the said Code, an accused is
arrested and brought before the Court
subordinate to this Court, it is quite possible
that out of lack of adequate knowledge or
financial difficulties or various reasons that
inspite of an acquittal in his favour an
accused may not apply for bail. The Division
Bench directed that in all such matters where
the accused is produced before the subordinate
Court after his arrest, the Judge concerned
ought to inform the accused that he has a right
to apply for the bail and thereafter it will be
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for the accused to make the appropriate
application. In the said decision this Court
noted the practice constantly followed that
after action is ordered under section 390 of
the said Code by this Court, the concerned
Subordinate Court issues communication to this
Court recording as to whether the accused has
been granted bail or the same has been refused.
The Division Bench directed that in all such
matters it would be desirable that the registry
places papers of the concerned appeal before
the appropriate
ig Court immediately after
receiving the communication with a note that
after the arrest of the accused he has been
taken into custody. The Division Bench noted
that in a case where the accused is not
enlarged on bail, there will be one more
opportunity to see that unnecessary detaining
the accused in custody inspite of acquittal by
the Trial Court is avoided and the person
concerned can be released on a bond. The
Division Bench observed that the aforesaid two
directions will take care of the situation
which had arisen in the case before the
Division Bench. The relevant part of the
decision of paragraph 25 reads thus :-
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“25. … … Now as the Section reads,
in an appeal from acquittal when an
accused is arrested and brought before
the subordinate Court it is for the
accused to apply for bail. It is quite
possible that out of lack of adequate
knowledge or financial difficulties or
various reasons that in spite of an
acquittal in his favour an accused may
not apply for bail. Some such thing
appears to have happened in the present
case. In our view in all such matters
where an accused is produced before the
subordinate Court after his rearrest the
Judge concerned ought to inform the
accused that he has a right to apply for
bail. Thereafter it will be for the
accused to make the appropriate
application.
application
(ii) We are told that the consequence of
any such bail application or even non
presentation thereof is reported by the
Judge concerned to the High Court
subsequently. Thus the communication
reaches the High Court as to whether the
accused has been granted bail or the same
has been refused. In our view, once such
communication is received from the
subordinate Court the Administration of
the High Court must find out as to
whether the accused has been granted bail
or has been denied it and whether he is
continued in custody. In all such
matters it would be desirable that the
High Court Administration places the
paper of the concerned appeal before the
appropriate Court with a note that after
the arrest of the accused subsequent to
the admission of the appeal against the
acquittal, accused has been taken in
custody. On noting this development it
will be for the concerned Court
thereafter to pass appropriate order.
that will be one more opportunity to see
to it that unnecessary retaining the
accused in custody in spite of acquittal
by the trial Court is avoided and the
person concerned can be released on a
bond.”
bond (Emphasis added)
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17. It is unfortunate that the Registry of
this Court has not implemented the second
direction issued by this Court of placing the
appeals against acquittal after report is
received from the Trial Court as regards the
action under section 390 of the Code. Even the
first direction issued to the Subordinate
Courts to bring it to the notice of the accused
of his right to apply for bail is not being
implemented.
18. Now
coming back to the present case, as
stated earlier, the order under section 390 has
already been implemented.
19. In the circumstances, no relief can be
granted to the applicants in these
applications. Therefore, I pass following
order:-
(a) The applications are rejected;
(b) The Registrar (Judicial-I) is directed to
ensure that second direction issued by this
Court in paragraph 25 of the judgement in the
case of Prema Bangar Swamy vs. State of
Maharashtra ([2004]- Cri.L.J.- 1296) is
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implemented;
(c) The Registrar (Judicial-I) will circulate a
copy of the said decision of the Division Bench
as well as this order to all the Criminal
Courts subordinate to this Court to ensure that
the said Courts scrupulously comply with the
directions issued by the Division Bench of this
Court in paragraph 25 of the said decision;
(d) A copy of this order shall be forwarded to
the Registrar (Judicial-I) of this Court.
(A.S.OKA, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.821 OF 2008
WITH
CRIMINAL APPEAL NO.824 OF 2008
WITH
CRIMINAL APPEAL NO.825 OF 2008
Good Value Marketing Company
Limited and another Appellants
versus
Montex Corporation & another Respondents
Mr.Subhash Jha i/by M/s.Law Global for the
appellants.
Mr.N.K.Thakore with Ganesh Bhujbal, Pavan Mali
i/by Prakash Naik for respondent no.1.
Mr.J.P.Yagnik, APP for the State in Appeal
No.821 of 2008.
Miss A.J.Javeri, APP for the State in Appeal
No.824 of 2008.
Mr.Y.S.Shinde, APp for the State in Appeal
No.825 of 2008.
CORAM : A.S.OKA, J.
DATE : 30th January 2009
PC :
1. The learned counsel for the appellants
prayed that he be permitted to file private
paper book. Liberty is granted to file private
paper book.
(A.S.OKA, J.)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.1170 OF 2008
IN
CRIMINAL APPLICATION NO.2081 OF 2008
IN
CRIMINAL APPEAL NO.821 OF 2008
WITH
CRIMINAL APPLICATION NO.1171 OF 2008
IN
CRIMINAL APPLICATION NO.2082 OF 2008
IN
CRIMINAL APPEAL NO.824 OF 2008
WITH
CRIMINAL APPLICATION NO.1172 OF 2008
IN
CRIMINAL APPLICATION NO.2083 OF 2008
IN
CRIMINAL APPEAL NO.825 OF 2008
Good Value Marketing Company
Limited and another Applicants
versus
Montex Corporation & another Respondents
Mr.Subhash Jha i/by M/s.Law Global for the
applicants.
Mr.N.K.Thakore with Prakash Naik for respondent
no.1.
Mr.J.P.Yagnik, APP for the State in Application
No.1170 of 2008.
Miss A.J.Javeri, APP for the State in
Application No.1171 of 2008.
Mr.Y.S.Shinde, APP for the State in
Application No.1172 of 2008.
CORAM : A.S.OKA, J.
DATE : 30th January 2009
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JUDGEMENT :
1. For the reasons separately recorded,
following order is passed :-
(a) The applications are rejected;
(b) The Registrar (Judicial-I) is directed to
ensure that second direction issued by this
Court in paragraph 25 of the judgement in the
case of Prema Bangar Swamy vs. State of
Maharashtra
([2004]-Cri.L.J.-1296) are
implemented;
(c) The Registrar (Judicial-I) will circulate a
copy of the said decision of the Division Bench
as well as this order to all the Criminal
Courts subordinate to this Court to ensure that
the said Courts scrupulously comply with the
directions issued by the Division Bench of this
Court in paragraph 25 of the said decision;
(d) A copy of this order shall be forwarded to
the Registrar (Judicial-I) of this Court.
(A.S.OKA, J.)
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