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Boman Chothia Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revision Application No. 471 of 1970
Judge
Reported in(1970)72BOMLR923
AppellantBoman Chothia
RespondentThe State of Maharashtra
DispositionAppeal allowed
Excerpt:
.....in a criminal cause, of the condemned person; for it is only by such publicity that the public can be satisfied that the law is being properly administered by those responsible for its administration and that abuses in that administration, which might occur if the fullest publicity was not given to the proceedings in a court, may be avoided. if it is considered desirable for citizens who arc not parties to criminal proceedings to obtain copies of judgments so that the public can be satisfied that the law is being properly administered and that the administration of criminal law is not being abused, it is not only necessary but imperative that the accused in a criminal case, who is put in peril of his liberty or his life, should have the right, unless there are circumstances which the..........filed in this high court a writ petition under articles 220 and 228 of the constitution, namely criminal application no. 590 of 1969, in which he prayed for a writ of mandamus directing the state of maharashtra, the commissioner of police and sub-inspector mirjankar to forbear from prohibiting cars coming out of gate no. 5 to turn to their right in order to proceed southward and further to forbear from prosecuting persons like the petitioner who took a turn to the right from gate no. 5. he also prayed for withdrawal of the four prosecutions by the high court to itself for disposal by it. an affidavit in reply was filed by sub-inspector mirjankar which was affirmed on july 28, 1969 in which it was stated that cars coming out of all gates were allowed normally to proceed along clark.....
Judgment:

Madon, J.

1. According to the description of himself which the petitioner, Boman Chothia, gave me at the first hearing of this revision application when he appeared in person, the petitioner is an expert on the Motor Vehicles Act, 1939, and one of the fortunate few who win consistently out of the thousands who flock weekly in search of fortune to the Mahalaxmi racecourse. He has filed this application in revision against an order of the Presidency Magistrate, 17th Court, Mazgaon, Bombay, refusing him inspection of the papers and proceedings in four criminal cases pending against him in that Court on the ground that the petitioner was not represented by an advocate. These four prosecutions were commenced against the petitioner at the instance of the Traffic Department of the Bombay City Police as a result of the petitioner's attempt to vindicate his expertise of the Motor Vehicles Act and the traffic regulations. At present it is somewhat premature to venture any prediction on the question how far this attempt of his will ultimately be successful, but from the course this litigation has so far taken it appears that the odds are in his favour.

2. The facts which have given rise to these prosecutions may now be narrated. The petitioner used to frequent regularly the Mahalaxmi race course and used to go into the First Class Enclosure. There are seven gates to the race course enclosures. According to the petitioner, the Traffic Police on race days permitted cars to come out of the race course compound only from gates Nos. 3, 5 and 7; cars of those who had attended the race meeting in the Member's Enclosure being allowed to come out of gate No. 3, of those who had attended the First Class Enclosure out of gate No. 5 which is opposite the First Class Enclosure and taxi-cabs and buses out of gate No. 7. The grievance of the petitioner is that while cars coming out of gate No. 3 and taxis and buses coming out of gate No. 7 are allowed to turn either south to proceed towards the Haji Ali corner or north towards the Mahalaxmi railway station, cars coming out of gate No. 5 are directed to turn north. The petitioner is the owner of a Moris Minor car bearing No. MRZ 6530. Since he used to go to the First Class Enclosure, the petitioner's car also had compulsorily to take a turn to the north. The petitioner objected to this on the ground of discrimination made by the Traffic Department between members of the Royal Western India Turf Club Ltd. and their guests on the one hand and non-members on the other. At the first hearing before me when he appeared in person the petitioner also made a grievance that it was unfair in these days of high cost of petrol to compel non-members who wanted to proceed south to make a long detour for that purpose. The petitioner accordingly wrote several letters to the Deputy Commissioner of Police in charge of the Traffic Department, It appears that he did not receive any reply to his satisfaction. Accordingly on December 29, 1968 he decided to put the matter to a cost. After the races were over, he informed Inspector Farooqui who was present that he intended to proceed south. He then got into his ear and as he came out of gate No. 5 ho turned south. He was stopped by Sub-Inspector Mirjankar who asked him to turn north. He refused and continued towards south. His car thereupon was stopped. Upon this, according to the prosecution, he called Sub-Inspector Mirjankar an idiot. He was arrested, taken to the Agripada Police Station and released on bail.

3. Out of this transaction as many as four prosecutions were commenced against the petitioner and the petitioner's grievance is that this is overdoing things a bit. In these four cases the petitioner was respectively charged with having committed an offence (1) under Section 80 of the Motor Vehicles Act, 1939, read with Section 118 of the said Act with having refused to produce his driving licence when called upon to do so by a police officer in uniform; (2) under Section 110 of the Bombay Police Act, 1951, with having behaved in a disorderly manner with a police officer in a public place; (8) under Section 68 read with Section 140 of the Bombay Police Act with having disobeyed the legal instructions of a police officer in uniform; and (4) under Section 120 of the Bombay Police Act with having caused an obstruction to the traffic keeping his motor car No. MRZ 6530 on Clark Road on which the Mahalaxmi race-course is situate. These four prosecutions were respectively numbered as Cases Nos. 1502, 1503, 1504 and 1505 of 1968.

4. In June 1969 the petitioner filed in this High Court a writ petition under Articles 220 and 228 of the Constitution, namely Criminal Application No. 590 of 1969, in which he prayed for a writ of mandamus directing the State of Maharashtra, the Commissioner of Police and Sub-Inspector Mirjankar to forbear from prohibiting cars coming out of gate No. 5 to turn to their right in order to proceed southward and further to forbear from prosecuting persons like the petitioner who took a turn to the right from gate No. 5. He also prayed for withdrawal of the four prosecutions by the High Court to itself for disposal by it. An affidavit in reply was filed by Sub-Inspector Mirjankar which was affirmed on July 28, 1969 in which it was stated that cars coming out of all gates were allowed normally to proceed along Clark Road either towards Haji Ali by taking a turn to the right, that is, towards south, or towards the Mahalaxmi Bridge by taking a turn to the left, that is, towards north, but this was always not possible and if there was heavy traffic proceeding towards the Mahalaxmi Bridge side, the policemen at the gates stopped for some time the cars which desired to take a turn towards the right in order to go to Haji Ali junction because such right turn would cut through the flow of north bound traffic.

5. When this writ petition reached hearing before a Division Bench consisting of Nain and Bhasme, JJ. the learned Assistant Government Pleader who appeared for the respondents therein made a statement that there was no obligation on cars emerging from any of the gates of the race course to Clark Road to proceed only to the north and that subject to the rights of the police to temporarily stop all or any cars emerging from any of the gates, such cars were, on so emerging from any of the gates, free to proceed to north or to south as they wished. In view of this statement the Division Bench did not consider it necessary to make any further order on that petition. The Division Bench, however, observed :

The police courts and the police will deal with prosecutions against the petitioner in light of the above statements.

6. According to the petitioner, he expected that in view of this order of the Division Bench, the four prosecutions against him would either be withdrawn or he would be discharged therefrom and he was, therefore, surprised to receive instead on April 9, 1970 a notice dated February 26, 1970 from the Presidency Magistrate's Court fixing the next date of hearing in the said four cases as April 16, 1970. According to him, he was also surprised to find that in the summons as originally typed the date of hearing was shown as March 9, 1970, which was scored out and in ink changed to March HO, 1970 and again scored out and changed to April 16, 1970. The petitioner not unnaturally wanted to find out why these dates were changed. He also was anxious to learn at whose instance the prosecutions were being proceeded with further. He also desired to know whether a copy of the proceedings in Criminal Application No. 590 of 1969 or of the order passed ! y the Division Bench therein was received by the Presidency Magistrate's Court. Accordingly on April 10, 1970 the petitioner made an application for inspection of the papers and proceedings in the said four cases and stated that he would pay the necessary fee for taking inspection. In the application it was further stated that the petitioner could not make the application earlier as the said notice was served upon him only on April 9, 1970 at 8.43 p.m. though it was dated February 26, 1970. On the same day the learned Magistrate passed the following order on his application :

The aforesaid notice stales that the date allotted now, to the Lese four cases, is 14th April 1970 (next Tuesday). The accused has no advocate. The papers cannot be given to accused or inspection. Hence rejected.

The date 14th April mentioned in the order appears to be a mistake, for the notice mentions the date as 16th April.

7. Against the said order the petitioner has now approached this High Court in revision. In his revision application he has also made certain other grievances, but they were not pressed before me by Mr. Desai, learned advocate for the petitioner, and I am, therefore, concerned only with the correctness in law of the order rejecting the petitioner's application for inspection of the papers and proceedings of the four cases against him.

8. I find it very difficult to appreciate the reasoning underlying this order. I am unable to understand what difference it would make whether a party was appearing in person or was represented by an advocate if in law there existed a right of inspection. If the petitioner has in law a right to take inspection, he would be entitled to exercise that right either by himself or, if he so chooses, through his advocate. After all, when a party is appearing through an advocate, it is he and not the advocate who is going to be affected by the result of a civil suit or a criminal prosecution. The petitioner is the accused in the four criminal cases. He is the person who would be prejudiced or affected by the unfavourable result of the prosecutions and if these prosecutions were to fail, it is he who would be vindicating the stand he has adopted vis-a-vis the Traffic Department and would be relieved of anxiety and tension; while for an advocate whom the petitioner may brief, this would merely be another professional engagement. There are no allegations against the petitioner that he is a person who is likely to tamper with the Court record. The petitioner is not an illiterate person. He is an M.Sc. of the Bombay University. At the hearing of the Criminal Application No. 590 of 1969 he appeared in person before the Division Bench. He filed this revision application also in person and at its first hearing appeared in person. If he chooses not to be represented by an advocate, it is his look out, but by reason thereof he cannot be put to a greater prejudice nor can a disability be imposed upon him from which other accused, who choose to be represented, are not made to suffer.

9. There is no provision in law which prohibits an accused from taking inspection of the record of and the papers and proceedings in the case against him. Sections 172 (2) and 173 (4) of the Code of Criminal Procedure, 1898, to which my attention was drawn by Mr. Joshi, learned Assistant Government Pleader for the State, are not material to the determination of the question before me. Section 172 (2) prohibits all accused or his agents from calling for the police diaries of the case or from seeing them except where they are used by a police officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting such police officer, in which cases the provisions of Section 161 or Section 145 of the Indian Evidence Act, 1872, as the case may be, are to apply. Section 173(4) requires that the officer in charge of a police station shall, before the commencement of the inquiry or trial, furnish or cause to be furnished to the accused free of cost the copy of the report forwarded under Sub-section (1) of that section and of the first information report recorded under Section 154 of the Code of Criminal Procedure and of all other documents or relevant extracts thereof on which the prosecution proposes to rely including the statements and confessions, if any, recorded under Section 164 and the statements recorded under Section 161(3) of all the persons whom the prosecution proposes to examine as its witnesses. Under Sub-section (1) of Section 554 of the Code of Criminal Procedure a High Court has the power, with the previous sanction of the State Government, to make from time to time rules for the inspection of the records of subordinate Courts. From none of these sections can it be spelt out that there is a statutory bar prohibiting a party to a criminal prosecution from taking inspection of the record of the case against him. The right to take inspection is not made dependent upon the framing of rules by the High Court under Section 554(i), In England there is a common law right of inspection of public documents by a person interested therein so far as may be necessary for the protection of such interest. This rule was stated by Lindley, L. J., in Mutter v. Eastern and Midlands Railway Co. (1888) 38 Ch. D. 92, in these words (p. 106) :

When the right to inspect and take a copy is expressly conferred by statute the limit of the right depends on the true construction of the statute. When the right to inspect and take a copy is not expressly conferred the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is. reasonably necessary for the protection of such interest. The common law right to inspect and take copies of public documents is limited by this principle...

10. Prior to 1984 no rule appears to have been framed by this High Court for inspection of the records of subordinate Courts. Such a rule was framed in 1934 by Criminal Circular No. 160A and was in these terms:

Subject at all times to the convenience of the Court and subject to such regulations as the presiding officer of the Court may make in order to ensure the safety of the record, parties to a criminal proceeding when they are not represented and their pleaders or advocates when they are represented are entitled, on payment of the prescribed fees, to inspect the papers exhibited in the said proceeding. In no case shall the original papers be removed from the office.' At present the rules for custody and return of records and for their inspection are to be found in Chapter XVII of the Criminal Manual, 1960, issued by this High Court for the guidance of the Criminal Courts and officers subordinate to it. By paragraph (A) of Chapter XVII of the Criminal Manual, 1961, issued by this High Court for use of Presidency Magistrates in Greater Bombay, several paragraphs of Chapter XVII of the Criminal Manual, 1960, including paragraphs 1 to 12, are made applicable to Presidency Magistrates' Courts. Paragraphs 4 and 5 of Chapter XVII of the Criminal Manual, 1960, which thus apply to Presidency Magistrates' Courts are as follows :

4. Inspection of the record shall be given on an application which shall bear the court-fee stamp of the prescribed value and shall state precisely the number of the proceeding, the record of which the inspection is sought; and if the application is for the inspection of a prescribed register, the description and the year of the register.

5. A party to a proceeding or his Lawyer may be allowed to take an inspection of the record and proceedings of a case whether pending or disposed of. No inspection shall be allowed to a person other than a party to the proceeding, unless the application is accompanied by an affidavit stating the purpose for which the inspection is sought.

Paragraphs 6 and 7 deal with fees for inspection and are not relevant. Paragraph 8, which is an important paragraph for our present purpose, is in these terms :

8. The order for inspection shall be made by the presiding officer of the Court on the application, which may be rejected, if he considers the applicant to be an undesirable person, or for some such other reasons, to be recorded in writing on the application, as he may deem fit.

It will be seen that the present paragraphs 4 and 5 are couched in wider terms than the old Criminal Circular No. 160A, for while the present paragraph 4 speaks of 'inspection of the record' and the present paragraph 5 of 'inspection of the record and proceedings of a case whether pending or disposed of', the old rule was confined only to inspection of 'the papers exhibited' in the proceedings. Even with reference to the old rule in Shamdasani v. Sir Hugh Cocke : (1941)43BOMLR961 , a Division Bench of this High Court consisting of Sir John Beaumont, C. J., and Sen, J., held that the expression 'the papers exhibited' was probably intended to cover the whole record, but even if it was to be confined to papers which were exhibited in the evidence of witnesses, so as not to include copies of depositions or orders of the Court, the rule was not exclusive and did not deprive the Court of the right which it previously enjoyed of granting inspection of the whole record to a party properly entitled thereto and that in revision the High Court was entitled to consider whether the Magistrate had exercised his discretion on the right ground. The rules at present contained in paragraphs 4 and 5 are expressly made much wider. They provide for inspection of the entire record and proceedings of a case, whether pending or disposed of. There are only two qualifications to this right. The first, which is contained in paragraph 5, is that if a person who is not a party to the proceeding desires to take inspection, his application for inspection is to be accompanied by an affidavit stating the purpose for which the inspection is sought. The second is the discretion conferred by paragraph 8 on the presiding officer if he considers the applicant to be an undesirable person, or for some such other reasons, to be recorded in writing on the application, to reject the application for inspection. In this connection the observations of Young, J., in Ladli Prasad v. Emperor : AIR1931All364 , are pertinent and require to be quoted. In that case the District Magistrate of Allahabad convicted Pandit Jawahar Lal Nehru. An application was made by counsel on behalf of his father Pandit Motilal Nehru for a copy of the judgment delivered by the Court. That application was refused on the ground that the applicant was not a party to the case or acting on behalf of a party to the case. An application was made to the Sessions Court for a reference to the High Court, which was granted. In revision Young J. set aside the order of the Magistrate. In the course of his judgment Young J. observed (p. 365):

As a matter of principle I am of opinion that the proceedings in, and specially the judgments of His Majesty's Courts ought to be accessible to the public, and unless by any statutory provision or by the rulings of any Court I am bound to the contrary, 1 would hold that it is the essence of the administration of justice that judgments affecting the rights, and more particularly the liberties, of the people should be made as public as possible, in order that the public at large might at leisure consider those judgments, either in their own interests or in the interests in a criminal cause, of the condemned person; for it is only by such publicity that the public can be satisfied that the law is being properly administered by those responsible for its administration and that abuses in that administration, which might occur if the fullest publicity was not given to the proceedings in a Court, may be avoided.

These observations, though made with more direct reference to judgments of a Criminal Court, also apply, as Young J. himself pointed out, to proceedings in Courts. If it is considered desirable for citizens who arc not parties to criminal proceedings to obtain copies of judgments so that the public can be satisfied that the law is being properly administered and that the administration of criminal law is not being abused, it is not only necessary but imperative that the accused in a criminal case, who is put in peril of his liberty or his life, should have the right, unless there are circumstances which the Court can accept as sufficient to deprive him of that right, to take full, free and unfettered inspection of the record of the case against him. In Shamdasani v. Sir Hugh Coclce, Beaumont, C. J., pointed out that the right to a certified copy must presuppose a right of inspection because a party cannot be expected to make up his mind whether he wants to have a, copy of a document, if ho is not entitled in the first place to read it, and sec what it is about, and to require a party to take certified copies of all documents on the record in order to determine of which documents he really requires a copy would involve unnecessary expense and trouble.

11. The only reason given by the learned Magistrate for rejecting- the petitioner's application for inspection is that the accused has no advocate. This, in my opinion, is no ground at all. As mentioned above, the accused is an educated person with high academic qualifications. He has written books on technical subjects. He is a respectable man. No antecedents are alleged against him nor have any allegations against his reputation or character been made in this revision application or in either of the two affidavits in reply filed in Criminal Application No. 590 of 1969. Even the offences which he is alleged to have committed and which are the subject-matter of the four prosecutions are not offences involving any moral I turpitude but merely technical offences and assuming, for the sake of argument, that he did commit them, they appear to have been committed to test the validity of the directions given to him by the traffic police.

12. It is not the case that this application does not bear a proper Court-fee stamp. In his application the petitioner has also expressed his willingness to pay the necessary fee. There is no reason to doubt that he will do so.

13. The result is that this revision application must succeed.

14. I accordingly make the rule absolute, set aside the order dated April 10, 1970 passed by the Presidency Magistrate, 17th Court, Mazgaon, Bombay, on the application for inspection dated April 10, 1970 made by the petitioner in Criminal Cases Nos. 1502, 1503, 1504 and 1505 of 1968 and direct that a reasonable time before the next hearing of these four cases or any of them the petitioner be allowed to take inspection of the papers and proceedings therein.


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