THE senior counsel to the government of Maharashtra, P.R. Vakil, is not a happy man. He represented the prosecution before B.P. Kamble, the additional chief metropolitan magistrate. With in hours of the Kamble verdict, Vakil strongly recommended the order passed be immediately challenged by the government .
According to Vakil, after the arrest, the Mumbai police made an application stating that the accused, Bal Thackeray, had been arrested at 11.40 the same morning , that the investigation in the case was completed and that the chargesheet was being filed. And that since the accused was not required for interrogation, suitable orders as per law be passed. As against this specific plea of the police, the sole prayer by Thackeray was that he be released on bail in such sum and on such conditions as the court deemed fit and proper.
Thus, says Vakil, the only proceedings pending before Kamble were the remand and bail applications. However, the magistrate proceeded straightaway to deal with the matter on merits. He gave a "judgment" and held:
- that the offence was barred by limitation;
- that cognisance should not be taken;
- that the accused be released; and
- that the offence should "stand terminated and closed".
Vakil describes the magistrates order as "highly unusual and unprecedented" . He says it is "exfacie perverse, illegal and unsustainable in law".
Over the last few days, support for this view has been growing in the legal community. According to P. Janardhanan, the additional advocate general of Maharashtra, "The magistrate was not legally competent to close the case. Under section 167 of the Indian Penal Code, a magistrate only decides whether or not to grant bail to an accused. Instead, in this instance, the magistrate has passed judgment in a case which was never before him in the first place," says Janardhanan. F o rmer Bombay High Court Justice A.Y. Sakh are describes the verdict one delivered "in a mysterious hurry". According to him, even if he had the jurisdiction to decide on the outcome of the case, Kamble should have granted the prosecution enough time to present its case papers (chargesheet , etal) but this was not done. Sakhare noted that neither side expected the verdict. "The defence had come fully prepared to put up a fight for bail. So had the prosecution, but they were not given time to present their case." Leaving, of course, both sides stunned.