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2005 Supreme(Bom) 164
Bombay High Court
Uttam S/o Ambadasrao Gawali
Versus
State of Maharashtra and Ors.
Appellants : Uttam S/o Ambadasrao Gawali
Respondents: State of Maharashtra and Ors.
Judgment Date: 08, February, 2005
Citations:
Judges:N.V. Dabholkar and A.B. Naik, JJ.
Headnote:Maharashtra Co-operative Societies Act, 1960 - Section 144-T - Constitution of India, 1950, Article 227 - Election petition challenged - Election set aside - Writ against - Plea - Commissioner is not a Tribunal - As stated in Article 227 - Commissioner exercised jurisdiction as quasi judicial authority - Held - Commissioner as a judicial authority and special officer is a creature of statute to decide election disputes - He had all trappings of a Tribunal subject to superintendence of Court. - The Commissioner is authorised to dismiss the election petition which does not comply with the provisions of Rule 74. Sub-section (4) of Section 144-T gives finality to the order passed by the Commissioner. The order made by the Commissioner under Rule 79 or 80 will take effect as soon as it is pronounced by the Commissioner. With abovesaid aspect being present and analysing the law declared by the Apex Court (supra ) and the statutory provisions, it is clear that (i) the Commissioner as a Special Officer, is creature of statute to decide election dispute; (ii) had all trappings of a Tribunal i.e. to decide the dispute between the candidates who contested the election of the specific society. Hence, without any hesitation it is held that the Commissioner, is a Tribunal subjected to the superintendence of the Court under Article 227 of the Constitution of India.
Maharashtra Co-operative Societies Act, 1960 - Section 144-T - Constitution of India, 1950, Article 227 - Letters Patent Appeal - Maintainability of - Election petition - Election set aside by Additional Commissioner challenged in LPA - Contention petition filed only to invoke writ certiorari - Commissioner acted as Tribunal - Following Apex Court decision in 2003 (6) SCC 675, petition filed under Article 227 of the LPA shall not be maintainable. - Though, the petition is titled as filed under both Articles i.e. 226 and 227 of the Constitution of India, it is necessary to have the relevant consideration to trace out which fact justified the petitioner to claim relief under Article 226 or 227 or only under Article 226 or 227 of the Constitution of India. As have been noticed from the judgment of the Apex Court in Surya Dev Rai, 2003 (6) SCC 675 and applying the test as laid down in that judgment, and considering the title, contentions and the prayers made in the petition, the petition though styled and filed under both Articles i.e. 226 and 227 of Constitution, it is held the petition is in issue under Article 227 of the Constitution of India. It is in fact, a petition filed under Article 227 of the Constitution of India. It is to be noted that the facts borne by the record did not justify filing of writ petition under both Articles i.e. 226 and 227 of the Constitution.
Maharashtra Co-operative Societies Act, 1960 - Section 144-T - Power of Commissioner. - Commissioner deciding an election petition, acts as a Tribunal subject to superintendence of High Court under Article 227 of Constitution.
Letters Patent - Clause 15 - Constitution of India, Articles 226 and 227 and Maharashtra Co-operative Societies Act, 1961, Section 144-T - Letters Patent Appeal. - Letters Patent Appeal against judgment of single Judge delivered in exercise of Article 227 of Constitution, not maintainable. - Writ petition was filed challenging the order passed by the Commissioner under Section 144-T of the Maharashtra Co-operative Societies Act and was filed styling it to be under Articles 14, 226 and 227 of the Constitution. Being aggrieved and dissatisfied by the election result respondent had filed election petition before Commissioner. The petitioner in the petition contended that the petition was not filed as required by law as it was not verified in the manner prescribed. Further contention was that the Commissioner should have rejected the election petition for non-compliance of rule. He also contended that the Commissioner has power to dismiss the election petition under the rules and in spite of showing such defects, the election petition was not dismissed. Main contentions which were advanced were regarding the defects of presentation of the petition filed under Section 144-T of the Act. In substance; (i) challenges were that the Commissioner assumed jurisdiction which he does not have; (ii) has failed to exercise the jurisdiction which is available to him and he has exercised the jurisdiction in a manner not permitted by law. Looking to the contents of the petition, the petition in effect is filed under Article 227 of the Constitution. An appeal against a judgment delivered by single Judge in exercise of jurisdiction under Article 227 of the Constitution is expressly barred by clause 15 of the Letters Patent of the Bombay High Court.
R.C. Chavan, J.
1. Taking exception to his conviction for offence punishable under Section 302 of Indian Penal Code and resultant sentence of imprisonment for life and fine of Rs.1,000/- imposed upon him, the accused Jaydeep @ Papya Rajanikant Bhate has preferred this appeal.
2. The appellant came to be prosecuted for murder of one Sapna, a Prostitute. The appellant was seemingly having a steady carnal relationship with Sapna for quite some time. He used to pick up Sapna from hotel Gandharva at Miraj. On 28th April, 1996, he took her to hotel Elegant at Kolhapur. The accused and Sapna registered themselves as Shri A.R. Patil and Smt. S.A. Patil and were allotted Room No.203 of hotel Elegant. Accused strangulated Sapna to death in course of his stay at the said hotel. On 29th April, 1996, between 7.00 p.m. and 8.00 p.m., accused came to the Receptionists Desk and handed over key of Room No.203 of the said hotel and told Receptionist not to disturb his female companion who was sleeping in the room. He left after paying for further stay since room was initially booked only for one day.
3. Curiously the accused seems to have gone to police station Sangli City at about 10.30 p.m.. The accused visited the said police station and then disclosed to the Head Constable on duty that he had committed a murder at Kolhapur. Accused informed the officer on duty that dead body was in Room No.203 of Hotel Elegant, Kolhapur. Police Station House Officer H.C. Rajpoot also received from the accused the bills for eatables supplied by the hotel Elegant to the accused. On being informed, Shahupuri Police Station, Kolhapur sent an officer to verify the correctness of telephonic message received from Sangli Police. Dead body of Sapna was accordingly found in Room No.203 of Hotel Elegant. An accidental death was registered. After performing inquest, dead body was sent for post-mortem examination. An officer was also deputed to Police Station, Sangli City, to bring the accused. A report was lodged by PI Narendra Mahadev Waghmale whereupon, an offence was registered. In course of investigation, police recorded statements of witnesses, seized incriminating articles, had articles examined by Forensic Science Laboratory and on completion of investigation, sent charge sheet to learned Chief Judicial Magistrate, Kolhapur, who committed the case to the Court of Sessions at Kolhapur.
4. The appellant-accused pleaded not guilty to the charge of murder framed by the learned 3rd Additional Sessions Judge, Kolhapur. Hence, he was put on trial.
5. The prosecution examined in all 15 witnesses in its attempt to bring home guilt of the accused. The accused too was examined under Section 313 of Code of Criminal Procedure and took defence of denial. Upon consideration of the prosecution evidence in light of arguments advanced, the learned 3rd Additional Sessions Judge, Kolhapur, held the accused guilty of murder and sentenced him to undergo imprisonment for life and fine of Rs.1,000/-. Being aggrieved thereby, the present appeal has been filed.
6. We have heard learned counsel for the appellant and learned Additional Public Prosecutor for State. We have gone through the record with the help of both the learned counsel in order to examine the correctness of the findings recorded by the learned trial Judge. P.W.3 Dr. Patil who conducted post-mortem examination was cross-examined about the manner in which the victim died of Asphyxia. According to Dr. Patil, there were no marks of fingers on the throat of the victim and also the ligature mark was oblique making it consistent with the theory of being hanged rather than strangulated by a ligature.
7. The fact that the victim met with death inside Room no.203 of hotel Elegant at Kolhapur is established from the inquest panchanama at Exhibit-16 which was admitted by defence. P.W.9-Nitin Zanpure, who is Receptionist at hotel Elegant, states that on 29th April, 1996, he had received a telephone call from the police who asked his
