1 ndm 1 wp.1633.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL WRIT PETITION NO. 1633 OF 2009 Prakash Ramji Thakkar. ... PETITIONER Vs. Jayesh Nanjibhai Sejpal and ors. ... RESPONDENTS -------- Mr. Shirish Gupte, senior counsel i/b M/s. V.T. Sipahimalani for Petitioner. Mr. M.B. Shirsat for Respondent Nos. 1 and 2. Mr. K.V. Saste, APP for State. -------- CORAM : B.R. GAVAI, J. DATE : 07 th April, 2010. P.C. 1 Rule made returnable forthwith. Heard by consent. 2 By way of present petition, the Petitioner challenges the order passed by the learned Judicial Magistrate First-Class, 7 th Court, Thane dated 23 rd April, 2009 thereby rejecting the application filed by the present Petitioner for adjournment on the ground that the counsel is indisposed and forfeiting the rights of the Petitioner to cross-examine the witnesses of the complainants and further keeping the matter for 2 recording the statement of the accused under Section 313 of the Criminal Procedure Code. 3 Mr. Shirish Gupte, senior counsel, appearing on behalf of Respondent Nos. 1 and 2 submits that on the date when the adjournment was sought, it was sought on the ground that the learned counsel was suffering from hypertension. He submits that in the alternative, it was also requested that the matter be kept on 02:30 p.m. i.e. after the lunch hours. He submits that refusing to grant even such an accommodation depicts a totally unreasonable attitude on the part of the learned Judicial Officer. He submits that by the impugned order, the valuable rights of the applicant have been taken away. 4 Mr. Shirish Gupte, senior counsel, appearing on behalf of Respondent Nos. 1 and 2 further submits that the application filed by the Applicant-accused for transferring the proceedings to Court at Mulund are also not decided by the learned Magistrate, though the learned Magistrate does not have jurisdiction to entertain the complaint. 5 Mr. Shirish Gupte, senior counsel, appearing on behalf of Respondent Nos. 1 and 2 on the contrary submits that since the matter was time bound as directed by this Court and Petitioner was delaying in disposal of the trial, the learned Magistrate has rightly passed the order impugned. 3 6 The contention of the Petitioner insofar as the issue of jurisdiction is concerned, prima-facie appears to be meritorious in view of the judgment of the Apex Court in the case of M/s. Harman Electronics (P) Ltd. and anr. Vs. M/s. National Panasonic India Ltd., reported in 2009(1) ALL MR 479. The issue of jurisdiction will go to the root of the matter. I further find that the Petitioner had made an alternative prayer for keeping back the matter till lunch recess. In all fairness to the rights of the accused, the learned Magistrate atleast ought to have accommodated the Petitioner or his counsel till lunch recess. Not accommodating the accused or his counsel even for a couple of hours, in my view, was not a judicious approach on the part of the learned Magistrate. 7 In that view of the matter, petition is disposed of with the following directions: i. The learned Magistrate shall hear and decide the application filed by the present Petitioner for transferring of the proceedings on the ground of jurisdiction withing a period of two weeks from today in accordance with law as laid down on the issue by the Apex Court as also as this Court. Needless to state that an opportunity of hearing would be given to the parties. ii. The impugned order dated 23 rd April, 2009 below 4 Exhibit-44 and Exhibit-34 are quashed and set aside. iii. In the event, the learned Magistrate holds that he has the jurisdiction to entertain the complaint, the proceedings would be completed within a period of two months from the date of such order. It is further directed that no adjournment on any ground shall be granted to the Respondents-accused. However, it should not be construed that he would not even accommodate the accused or his counsel for couple of hours. iv. In the event, the learned Magistrate holds that he has no jurisdiction to entertain the complaint, the proceedings shall be transmitted to the Court of competent jurisdiction within a period of 15 days from the date of the order passed by the learned Magistrate. v. If the proceedings are transferred to some other Court than the Court at Thane, the learned Magistrate of that Court shall continue with the proceedings from the stage at which they have been transferred and conclude the same within a period of two months from the date of receipt of the papers. Needless to state that the directions insofar as non 5 grant of adjournment are concerned, would also apply to the transferee Court. vi. The observations made by this Court hereinabove regarding jurisdiction are upon prima-facie appreciation of the matter and the learned Magistrate would take an independent view thereof on the basis of law laid down by the Apex Court and this Court. 8 Rule is made absolute in the aforesaid terms. No order as to costs. [ B.R. GAVAI, J ]