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2014 Supreme(Bom) 1828
High Court of Judicature at Bombay
R.D. DHANUKA, J.
Prabodh K. Mehta
Versus
Charuben K. Mehta
First Appeal Nos. 922 of 2013 & 923 of 2013 In Charity Application Nos. 10 of 2013 & 13 of 2013
Decided On: 05-11-2014
For the Appellant:Iqbal Chagla, Senior Advocate a/w Naval Agarwal a/w Riyaz Chagla, Dhirendra Sinha, Ashish Gatagat i/by M/s. Vidhi Partners, Advocates.
For the Respondent:Mahesh Jethmalani, Senior Advocate a/w Pranav Badekha, Dakshesh Vyas, Karl Tamboli, Rizvi Nasirali, Abhishek Prabhu i/by M/s. Thakore Jariwala & Co., Advocates.
Headnote:Constitution of India - Article 141 Reference to larger Bench. - A question, being in conflict between judgment of Nagpur High Court and Bombay High Court liable to be referred to larger Bench. In so far as reliance placed by senior counsel on Section 2, 3 and 4 of the Indian Penal Code and Section 8 of Code of Criminal Procedure, is concerned, senior counsel is right in his submission that in none of those provisions Indian Courts are permitted to take cognizance of the conviction of an offence by an Indian committed outside India. Reliance placed on those provisions by the senior counsel for the respondent is thus misplaced. In view of the aforesaid reasons, it would be appropriate that this question which is of wide public importance and in view of the conflict between the judgment of the Nagpur High Court and the Court, the said issue be considered by the larger bench. In this view of the matter Registrar of the Court is directed to place the papers before the Hon’ble Chief Justice for appropriate orders to refer the following question to the larger bench for determination :
"Whether conviction of an Indian by a foreign Court for the offence committed in that country can be taken notice of by the Courts or authorities in India and such conviction would be binding on Courts and authority in India while trying such person for such offence in India?"
Constitution of India - Article 141 State Reorganisation Act, 1956, Sections 59(2), 59(3), 59(5) Binding precedent. - Judgment on question of law delivered by Nagpur High Court prior to enactment of Act, 1950 would be binding on Bombay High Court. Reading of Section 59(2), Section 59(3) and 59(5) of State Reorganisation Act would indicate that the territory of Nagpur having become territory of State of Bombay and the then Nagpur High Court not having been abolished and the Bombay High Court already in existence on the date of enactment of the said States Reorganisation Act, 1956, the law laid down by the Nagpur High Court prior to the enactment of the States Reorganisation Act, 1956 would be binding as a precedent on the Bombay High Court on the question of law. After 1960 the territory of Nagpur continued to be part of State of Maharashtra since in this case neither the Nagpur High Court has been abolished nor Bombay High Court is established under the provisions of the said States Reorganisation Act, 1956, and only the territories of various States including Nagpur having been reorganized and Nagpur became part of State of Bombay, the judgment on question of law delivered by Nagpur High Court prior to the enactment of the said Act would be binding on the Court. [AIR 1959 Mysore 1 Distinguished].
1. These appeals are directed against the order dated 20th July, 2013 passed by the City Civil Court dismissing the Charity Application filed by the appellant and allowing Charity Application filed by the respondent dismissing the appellant as trustee of Lilavati Kirtilal Mehta Medical Trust.
2. The facts that are material and relevant for the present case are as under:
On 15th January, 2007 the appellant was appointed as a trustee of the Lilavati Kirtilal Mehta Medical Trust w.e.f. 15th January, 2007 for the period of 5 years. The appellant was allegedly convicted of an offence of moral turpitude by a Court in Belgium. On 28th April, 2008, the respondent filed an Application No. 5 of 1008 under Section 41D of the Maharashtra Public Trusts Act, 1950 before the learned Joint Charity Commissioner, Greater Mumbai seeking removal/dismissal/suspension of the appellant as a trustees on the ground that he was allegedly convicted of an offence involving moral turpitude by a Court in Belgium.
3. By a resolution dated 18th October, 2011 passed by the trustees of the said trust, the appellant was appointed as a trustee for further period of 5 years w.e.f. 15th January, 2012. It is the case of the appellant that on 4th March, 2011, the Chamber of Indictment, Court of Appeal, Antwerp, Belgium granted rehabilitation/pardon to the appellant and restored his honour and rights. It is the case of the appellant that by virtue of the said order, the effect of rehabilitation according to the Belgiam laws was that the same forever and permanently erased the criminal record of the appellant. The rehabilitation ends/terminates all the negative consequences of the conviction by erasing extracts of the criminal record. The same is clean towards the outside world.
4. By an order dated 8th March, 2013, the learned Joint Charity Commissioner allowed the said application filed under Section 41D thereby removing the appellant from the said trust for the remaining tenure. The City Civil Court rendered a finding that the respondent had proved that the appellant is convicted of an offence involving moral turpitude. Being aggrieved by the said judgment dated 20th July, 2013 the appellant preferred this appeal.
5. Mr. Chagla, learned Senior Counsel appearing for the appellant submits that the offence of moral turpitude alleged by the respondent should be in the capacity of the trustee or in relation to the trust and conviction arising out of such offence should be in India and not anywhere else to attract Section 41D of the Maharashtra Public Trusts Act. Reliance is placed on Sections 3(29) and 3(38) of the General Clauses Act, 1897. Learned Senior Counsel placed reliance on the judgment of Nagpur High Court in case of GovindKesheo Powar Vs. State of Madhya Pradesh, reported in AIR 1955 Nagpur 236 and in particular paragraphs 1, 4, 6 to 8 and would submit that even if this Court comes to the conclusion that there would be no effect of rehabilitation/ pardon to the appellant granted by the Chamber of Indictment, Court of Appeal, Antwerp, Belgium, the alleged conviction of the appellant of offence having been committed by the appellant at Belgium, the authorities under the Maharashtra Public Trusts Act, 1950 can not take notice of such alleged conviction while deciding the application for removal of the trustee under the said Act. It is submitted that only if such offence would have been committed in India subject to the provisions of the Maharashtra Public Trusts Act, cognizance of such act could be taken.
6. Paragraphs 1, 4, 6 to 8 of the said judgment of the Nagpur High Court in the case of Govind (supra) read thus:
“1. It is said on behalf of the petitioner that Shankar was convicted under Rule 72(4), Defence of Hyderabad Rules by a Magistrate in the Hyderabad State-sometime in the year 1943 and sentenced to pay a fine of Rs. 10/- and to undergo imprisonment till the rising of the Court. It is Further said that the offence under the aforesaid provis
