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Maharashtra government bungled, say supporters, opponents

Y Siva Sankar in Bombay

The dismissal of the Maharashtra government's case against Shiv Sena leader Bal Thackeray has evoked mixed reactions in the city.

"The state government has bungled. This is a very unfortunate development," said Justice H Suresh, former Bombay high court judge and civil rights activist.

"The learned magistrate thinks the case is time-barred. But there is a provision under the Criminal Procedure Code to exclude the time taken for getting permission to go ahead with the prosecution, whenever sanction is required from the government. The time taken for prosecution can be excluded. The case details show the police did apply for permission, there was no delay on their part. The application has been pending since 1993. There is another provision under the Criminal Procedure Code which says the court has the power to condone the delay if it is satisfied about the reasons for the delay," Justice Suresh said.

Agreed senior advocate Yusuf Muchala: "The question is one of maintaining the rule of law, and that principle has been undermined. This is very distressing."

Communalism Combat editor Javed Anand stressed that the case had been dismissed only on "technical grounds". "This very fact proves that the merits of the case have not been looked into. So people should not construe this as an acquittal," he said.

Muchala elaborated on this point. "The magistrate has discharged or exonerated (not acquitted) Thackeray because there was insufficient material to proceed against him."

But lawyer and Rajya Sabha MP Adhik Shirodkar, who was part of Thackeray's defence team in the case, said, "Raking up a case after seven years in this manner is abuse of law."

He recalled that Deputy Chief Minister Chhagan Bhujbal deliberately made the prosecution announcement on Guru Poornima, a day when gurus are honoured and their blessings sought. "The best course for the government could have been to file a charge sheet, move the court to condone the delay and initiate legal process. Seeking arrest was not necessary, as has been stated by the Supreme Court in the Joginder Singh case. Even the writ filed by former state chief secretary J B D'Souza and journalist Dilip Thakore against Thackeray was dismissed by the Supreme Court in 1995.

"The Supreme Court concurred with the Bombay high court that there was no prima facie evidence and that the case was old and stale. And yet the government, rather Bhujbal, decided to go ahead. I learn that even the state governor advised the government against any action. That is why I call it abuse of law."

About the magistrate's decision to invoke the time-bar factor, Muchala said section 470 of the CrPC lays down that "if the previous consent or sanction of the government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the time required for obtaining such consent shall be excluded."

Justice Suresh read out the relevant portion of Section 473 of the CrPC: 'Notwithstanding anything contained in the foregoing provision of this chapter [all related to the delay], the court may take cognisance of the offence after the expiry of the period of limitation, if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained...'

"I wonder if the state government has made all the necessary submissions. How can a case involving loss of life of a thousand-odd people, dislocation of thousands more and destruction of property worth billions of rupees be dismissed under ten minutes? If the state government has not made all the necessary submissions, then it has goofed up."

Muchala said the fact that the magistrate had come down heavily on the prosecution for placing insufficient material before him to proceed against Thackeray shows that there are lacunae in the chargesheet. "The state government must tell the people what went wrong with the prosecution in this hypersensitive case."

But Shirodkar said the government goofed, but deliberately. "The state government deliberately did not make the necessary submissions before the court. It was never interested in pursuing the case because it knew all along that its case was unsustainable. The law department made it officially clear by way of an official note to Bhujbal. But he chose to ignore it and proceed with the arrest, merely to take 'credit' that he is the first person to get Thackeray arrested."

"They cannot say they were not aware of the law or that their prosecutors let them down. P R Vakil is a senior and eminent legal luminary," Shirodkar said.

Sounding disturbed at the turn of events, Justice Suresh said, "The public has been fooled, they have been taken for a ride. Schools had to be closed down, inconveniencing kids and their mothers. And here is this man who comes out like a hero."

But Shirodkar blames Bhujbal for the imbroglio. "He has this 'I' fixation. The aham factor. He wanted to be known as the person who took on Thackeray. This is mala fide per se."

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