Bombay High Court
Vishnu S/O. Jejeram Gitte And Others vs Santosh S/O. Balasaheb Gitte And Anr on 24 September, 2018
Author: V.K. Jadhav
Bench: V.K. Jadhav
1 CRI WP 1713.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 1713 OF 2017
VISHNU S/O. JEJERAM GITTE AND OTHERS
VERSUS
SANTOSH S/O. BALASAHEB GITTE AND ANR
...
Advocate for Petitioners : Mr Suryawanshi Surendra V.
Advocate for Respondents : Mr Mundhe Ashok A.
...
CORAM : V.K. JADHAV, J.
...
Reserved on : September 12, 2018
Pronounced on : September 24, 2018.
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O R D E R :-
1. The petitioners/original accused have challenged the order dated 10.4.2017 passed by the Judicial Magistrate First Class, Parali Vaijnath in RCC No.19/2015 and the judgment and order dated 26.9.2017 passed by the learned Additional Sessions Judge, Ambajogai, District Beed in Criminal Revision No.35/2017 confirming thereby the aforesaid order passed by the Judicial Magistrate First Class, Parli Vaijnath.
2. Brief facts, giving rise to the present writ petition, are as follows :-
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2 CRI WP 1713.2017.odt a] Respondent no.1 has filed the private complaint bearing Criminal Case No.19/2015 against the petitioners for having committed an offence punishable under sections 392, 341, 324, 323, 504, 506 r/w 34 of the Indian Penal Code. It has been alleged in the complaint that, on 17.12.2014 at about 09.15 p.m. in front of the gate of substation the complainant was beaten by the accused persons and also subjected to threatening. On 18.12.2014 the complainant was again beaten by the petitioners/original accused and on the point of knife cash amount of Rs.12,000/- and golden locket of three tolas came to be snatched by the petitioners/original accused persons forcibly. The learned Judicial Magistrate First Class, Parli (Vaijnath) by order dated 7.1.2016 directed to send the copy of the complaint to Police Station, Parli City for investigation under section 156 (3) of the Criminal Procedure Code.
The Assistant Police Inspector of Police Station, Parli City has submitted "B" summary before the learned learned Judicial Magistrate First Class, Parli (Vaijnath). However, the learned Magistrate has directed the complainant to lead evidence. Accordingly, respondent ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 3 CRI WP 1713.2017.odt no.1 herein/complainant has adduced the evidence before the Court. The learned learned Judicial Magistrate First Class, Parli (Vaijnath) by order dated 10.4.2017 has issued process against the petitioners/accused under sections 392, 341, 324, 323, 504, 506 read with section 34 of the Indian Penal Code. Being aggrieved by the same, the petitioners/original accused have preferred Criminal Revision Application No.35/2017 and the learned Additional Sessions Judge, Ambajogai, District Beed by judgment and order dated 26.9.2017 dismissed the revision by confirming the order of issuance of process dated 10.4.2017 passed by the Magistrate as stated above. Hence this writ petition.
3. Learned counsel for the petitioners submits that, in respect of the incident dated 17.12.2014 present petitioner no.1 has lodged the private complaint bearing Criminal Case No.14/2015 before the learned Judicial Magistrate First Class, Parli (Vaijnath) against respondent no.1 herein and three others for having committed an offence punishable under sections 394, 363, 324, 323, 504, 506, 34 of the Indian Penal Code. ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 :::
4 CRI WP 1713.2017.odt Petitioner No.1 Vishnu has lodged the said complaint in respect of the incident that has occurred on 17.12.2014 at about 11.00 p.m. at Parli Vaijnath. On the basis of his complaint, the learned learned Judicial Magistrate First Class, Parli (Vaijnath) has directed the PSO of City Police Station Parli Vaijnath to investigate the matter as provided under section 156 (3) of the Criminal Procedure Code. Learned counsel submits that, so far as the complaint filed by respondent no.1 herein is concerned, the API of City Police Station, Parli Vaijnath has carried out the investigation and submitted 'B' Summary before the Magistrate. It was revealed during the course of the said investigation that, present petitioner no.1 was admitted in S.R.T.R. Medical College, Ambajogai for treatment in respect of the incident that has occurred on 17.12.2014 and at the time of the incident as alleged in the complaint lodged by respondent no.1 herein he was admitted in the said hospital as indoor patient. Further, it was also revealed during the course of investigation that the original co- accused nos. 2, 3 and 5 were also present alongwith original accused no.1 (petitioner No.1) in the Swami ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 5 CRI WP 1713.2017.odt Ramanand Teerth Rural Government Medical College (for short hereinafter referred as 'SRTR'), Ambajogai, accused no.4 was working at that time in Thermal Power Station, Parli Vaijnath, accused no.6 at Village Chandapur in his agricultural land and accused no.7 was attending one function in the house of his friend at Ambajogai. Learned counsel submits that the learned Magistrate has not passed any specific order as to whether 'B' summary has been accepted or not and directed respondent no.1/original complainant to lead evidence and by ignoring "B" summary report only on the basis of the statement of the complainant and his two witnesses issued the process against all petitioners for the offences as detailed in the foregoing paragraphs. Learned counsel submits that, petitioner no.1 herein has sustained in all six injuries and he was examined on 18.12.2014 at about 09.20 am in SRTR Medical College and Hospital, Ambajogai and thereafter he was admitted there for the entire day. Thus, it could not have been possible for the petitioner no.1 herein to remain present at Parli Vaijnath at about 12.00 to 12.30 p.m. on 18.12.2014 and commit the offence as alleged ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 6 CRI WP 1713.2017.odt by respondent no.1 in his complaint. Learned counsel submits that, entire approach of the Magistrate is not proper, correct and legal. The learned Additional Sessions Judge, Ambajogai has not considered the documents pertaining to the medical certificate of petitioner no.1 and also other relevant papers. Furthermore, the learned Additional Sessions Judge, Ambajogai has also not considered that the Magistrate has not passed any specific order as to whether "B" summary report has been accepted or not. Learned Additional Sessions Judge, Ambajogai has dismissed the Criminal Revision without going into the merits and confirmed the order passed by the Judicial Magistrate First Class, Parli Vaijnath, mechanically.
4. Learned counsel for the respondent no.1/original complainant submits that, even upon receipt of the police report under section 173 (2) a Magistrate is entitled to take cognizance of an offence under section 190(1)(b) of the Criminal Procedure Code even if the police report is to the effect that no case is made out against the accused. Even, the Magistrate can take into ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 7 CRI WP 1713.2017.odt account the statements of the witnesses examined by the police during the course of the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Learned Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit in exercise of his powers under Section 190 (1) (b) and direct the issue of process to the accused. Even, the Magistrate in such a case is not bound to follow the procedure laid down under sections 200, 202 of Cr.P.C. for taking cognizance of the case under section 190 (1)(a) though it is open for him to act under Section 200 or 202 of the Criminal Procedure Code also. Learned counsel submits that, in the instant case, the Magistrate has followed the procedure as contemplated under sections 200, 202 of the Criminal Procedure and after recording the evidence laid by respondent no.1/complainant and even after considering the statements of certain witnesses recorded during the course of the investigation, issued the process against the petitioners. Learned counsel ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 8 CRI WP 1713.2017.odt submits that, so far as the defence of alibi is concerned, at the time of issuance of the process, there is no question of considering the defence of alibi and it is always open for the accused persons to raise said defence at an appropriate stage. Learned counsel submits that, respondent no.1/original complainant has sustained the injuries and he was admitted in the hospital for treatment. Even, on the basis of his complaint, the Magistrate has directed the concerned police station to register the Crime. Learned counsel submits that, there is no substance in this writ petition. The order passed by the Judicial Magistrate First Class, Parli Vaijnath and confirmed by the Additional Sessions Judge, Ambajogai District Beed calls for no interference.
5. Learned counsel for respondent no.1 in order to substantiate his contentions placed his reliance on the following two cases :-
I. M/s India Carat Pvt Ltd., Vs. State of Karnataka and another reported in AIR 1989 Supreme Court 885. II. Taramati Parakh Vs. State of M.P. and others reported in 2015 AIR SCW 1817.::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 :::
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6. I have also heard the learned APP for the respondent no.2-State.
7. In the instant case, initially the learned Judicial Magistrate First Class, Parli Vaijnath has directed the investigation into the allegations made in the complaint lodged by respondent no.1/original complainant and, even though, concerned investigating officer has submitted 'B' summary report, further directed respondent no.1 complainant to lead the evidence. It is thus clear that learned Magistrate has not accepted 'B' summary report submitted by the Investigating Officer and taken recourse to the provisions of section 200 and 202 of the Criminal Procedure Code for taking cognizance of the complaint under section 190(1)(b.) of Criminal Procedure Code.
8. In a case 'M/s. India Carat Pvt Ltd., Vs. State of Karnataka' and another reported in AIR 1989 SC 885, relied upon by the learned counsel for respondent no.1, in paragraph no.16 of the judgment, the Supreme Court ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 10 CRI WP 1713.2017.odt has made following observations :-
"16.The position is, therefore, now well settled that upon receipt of a police report under Section 173 (2) a Magistrate is entitled to take cognizance of an offence under Section 190 (1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer ;and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Section 200 and 202 of the Code for taking cognizance of a case under Section 190(1)
(b) though it is open to him to act under Section 200 or Section 202 also. The High Court was, there- fore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him."
9. In the instant case, it appears that, the learned Judicial Magistrate First Class, Parli Vaijnath has recorded his observation on the basis of the evidence lead by respondent no.1/original complainant that prima facie, it appears that, the incident narrated in the complaint happened and accused (petitioners herein) have committed the cognizable offence. It is not out of place to mention here that petitioner no.2 was serving in the police department at the relevant time. So far as the ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 11 CRI WP 1713.2017.odt defence of alibi is concerned, the petitioners would be at liberty to substantiate the same during the course of the trial and, obviously respondent no.1/complainant would get opportunity to cross-examine the witnesses on defence of alibi. It would not be appropriate to consider the said defence at this stage. It is well settled that a Magistrate can ignore the conclusion arrived at by the Investigating Officer and independently apply his mind to the facts emerging from the investigation and to take cognizance of the case. It further appears that though the Investigating Officer has recorded statements of the witnesses Arun Bhaskar Munde and one Balasaheb Ganpatrao Gite, the Investigaing Officer has not given due weightage to their statements and submitted "B" summary report. It further appears that the Investigating Officer during the course of the investigation has recorded the statement of one Jagannath Dnyanoba Munde, who is cited as witness in the complaint in the negative, however, respondent no.1 has examined the same witness before the Judicial Magistrate First Class, Parli Vaijnath, wherein he has supported the prosecution case and, further explained ::: Uploaded on - 24/09/2018 ::: Downloaded on - 25/09/2018 02:23:44 ::: 12 CRI WP 1713.2017.odt that his statement was never recorded by the police. Similar is the case of witness Arun Bhaskar Mundhe, who is also cited as witness in the complaint. In view of the above, I do not think that the learned Judicial Magistrate First Class, Parli Vaijnath has committed any mistake. The learned Additional Sessions Judge, Ambajogai District Beed has rightly confirmed the order passed by the Judicial Magistrate First Class, Parli Vaijnath. No interference is required. It is hereby made clear that this Court has not gone into the merits of the allegations made in the complaint and the petitioners would be at liberty to raise the defence of alibi as available to them and, the trial court may consider the same on its own merits. In view of the above, I proceed to pass the following order.
O R D E R I. Criminal Writ Petition is hereby dismissed. No costs.
II. Criminal Writ Petition is accordingly disposed of.
( V.K. JADHAV, J. ) ....
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