Bombay High Court
Ramesh Parasram Chavan And Others vs State Of Mah., Thr. P.S.O. Janephal, Tq. ... on 16 February, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 267 OF 2020
APPLICANTS : 1] Ramesh S/o Parasram Chavhan,
Aged 37 years, Malode Galli,
Ward No. 14, Hadgaon, Dist. Nanded.
2] Parasram S/o Lasu Chavhan,
Aged 66 years, Occu. Farmer,
R/o Pathardi, Tal. Mehkar, Distl Buldhana.
3] Vatsalabai W/o Parasram Chavhan,
Aged 60 years, R/o Pathardi,
Tal. Mehkar, Dist. Buldhana.
4] Kailsah S/o Thavru Rathod,
Aged 39 years, R/o Pathardi,
Tal. Mehkar, Dist. Buldhana.
5] Kuntabai W/o Kailasah Rathod,
Aged 39 years, R/o Pathardi,
Tal. Mehkar, Dist. Buldhana.
VERSUS
NON-APPLICANTS: 1] State of Maharashtra,
Through Police Station Officer,
Police Station, Janefal,
Tal. Mehkar, Dist. Buldhana.
2] Motiram S/o Gaibu Rathod,
Aged 63 years, Occu. Retired,
R/o Hindu Auto Stop, In front of Katkar's
House, Ekta Nagar, Behind post office,
Ward no.14, Tq. & Dist. Buldhana.
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Mr. Nihalsingh Rathod, Advocate for the applicants
Mr. Amit R. Chutke, A.P.P. for the non-applicant No.1
Ms. Deepali V. Sapkal, Advocate for non-applicant no.2
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CORAM : G. A. SANAP, J.
DATE : FEBRUARY 16, 2023.
ORAL JUDGMENT
1. Heard.
2. ADMIT. Taken up for final disposal by the consent of the learned advocates for the parties.
3. In this application, filed under Section 482 of the Code of Criminal Procedure (for short "Cr.P.C."), the applicants have prayed that the order passed by the learned Judicial Magistrate, First Class, 2 nd Court, Mehkar, dated 20.02.2019 issuing process against them for the offence punishable under Section 504 read with Section 34 of the Indian Penal Code in Misc. Criminal Case No. 365/2015 be quashed and set aside.
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4. The facts leading to this application are as follows :
The applicants are the accused and non-applicant no.2 is the complainant. In this judgment, the parties will be referred to by their nomenclature in the complaint proceeding. In his complaint filed before the learned Judicial Magistrate First Class, the complainant has stated that on 02.10.2015, he was taking round of his field. The field of the accused and the field of the complainant are divided by a common boundary (bandh). The boundary marks according to the non- applicant no.2 were fixed by the government officials. It is stated that the accused removed those government boundary marks. All the accused were present in the field. The complainant asked them as to why they had removed the government boundary marks from the boundary. It is stated that at that time, the accused Nos.1, 2, 4 and 5 quarrelled with the complainant. They abused him in filthy language. They also threatened to kill him. They also threatened to falsely implicate him in a crime. This incident was witnessed by Subhash Pawar, Tukaram, Rathod and Ramesh Jadhao, residents of village Warwand, Tah. Mehkar. These three persons intervened in the quarrel, otherwise the accused persons would have assaulted the ::: Uploaded on - 22/02/2023 ::: Downloaded on - 05/06/2023 08:31:10 ::: 4 APL267.20 (J).odt complainant. It has been specifically stated in the complaint that at the time of the incident, accused no.3 (applicant no.1 herein) was not actually present on the spot. He was at the place of his service in another district.
5. On presentation of the complaint by the complainant, learned Magistrate recorded his verification statement. On the basis of his verification statement and the facts stated in the complaint, learned Magistrate was pleased to issue process against the accused persons/ applicants for the offence punishable under Section 504 read with Section 34 of the Indian Penal Code. The accused persons have challenged this order before this Court in the present application.
6. I have heard Mr. Nihalsingh Rathod, learned advocate for the applicants, Mr. Amit R. Chutke, learned Additional Public Prosecutor for the non-applicant no.1/State and Ms. Deepali V. Sapkal, learned advocate for the non-applicant no.2/complainant. Perused the record and proceedings.
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7. Learned advocate for the accused submitted that the order passed by learned Magistrate issuing process is mechanical. Learned Magistrate has failed to record the reasons for issuance of process against the accused persons. It is also submitted that the learned Magistrate did not record the statements of the witnesses, whose names were mentioned in the complaint. It is further submitted that there is no averment in the complaint that the so called acts committed by the accused provoked the complainant to commit any other offence. Learned advocate submitted that the order passed by the learned Magistrate is in gross violation of the provisions of law. The offence as alleged has not been made out from the complaint. Learned advocate submitted that the complainant himself has stated in the complaint that the accused no.3 was not present on the spot, still the learned Magistrate issued process against him. Learned advocate submitted that therefore, the order passed by the learned Magistrate issuing process was in gross violation of the provisions of Section 202 of the Cr.P.C. It is submitted that therefore, the order is required to be quashed and set aside.
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8. Learned advocate appearing for the complainant submitted that the learned Magistrate recorded the verification statement of the complainant. Learned advocate submitted that though number of other offences were stated in the complaint, the learned Magistrate issued process against the accused persons only for the offence under Section 504 read with Section 34 of the IPC. Learned advocate submitted that therefore, the order passed by the learned Magistrate, based on the available material cannot be said to be without application of mind. Learned advocate submitted that the facts stated in the complaint prima facie make out the basic ingredients of Section 504 read with Section 34 of the IPC.
9. Learned advocate for the complainant submitted that perusal of the order would show that on the basis of the material available on record, learned Magistrate has recorded prima facie satisfaction about commission of the offence under Section 504 read with Section 34 of the IPC by the accused. Learned advocate for the complainant in all fairness submitted that the accused no.3 was not present on the spot and this fact having been stated in the complaint, ::: Uploaded on - 22/02/2023 ::: Downloaded on - 05/06/2023 08:31:10 ::: 7 APL267.20 (J).odt the learned Magistrate should not have issued process against accused no.3 (applicant no.1).
10. In order to appreciate the rival submissions, I have gone through the record and proceedings. It is the basic contention of the learned advocate for the applicants that the order passed by the learned Magistrate is without application of mind and as such its a mechanical exercise of the power. In order to buttress his submission, learned advocate pointed out that accused no.3 was residing outside the jurisdiction of the Court of Judicial Magistrate, First Class, Mehekar. It is, therefore, submitted that the process issued against him without complying the provisions of Section 202 of the Cr.P.C. indicates the casual approach of the learned Magistrate. It is to be noted that since accused no.3 was residing outside the jurisdiction of the Court of learned JMFC, Mehekar, he was bound to comply the mandatory provisions of Section 202 of Cr.P.C. Learned Magistrate was supposed to make an enquiry himself or direct the police to conduct the enquiry. Learned Magistrate without conducting the enquiry either himself or directing the police to conduct enquiry, issued process against the ::: Uploaded on - 22/02/2023 ::: Downloaded on - 05/06/2023 08:31:10 ::: 8 APL267.20 (J).odt accused persons. In my view, this is the basic lacuna in the case of the complainant. The process issued against all the accused, in view of this factual position, cannot be sustained. The facts stated in the complaint apart from creating a doubt about the credibility of the complaint, leads one to find fault with the order passed by the learned Magistrate.
11. According to the complainant, accused nos.1, 2, 4 and 5 had uprooted the boundary marks fixed by the government officials. It is stated that he had lodged complaint with the police. He has not placed on record a copy of panchanama, if any, drawn by the police. It is to be noted that considering the nature of the offence alleged to have been committed by the accused, the enquiry by the police could have supported the facts stated in the complaint and ultimately, the order passed by the learned Magistrate. In the enquiry by police, the police would have drawn the panchanama of the spot. In the panchanama, actual position prevailing on the spot would have been recorded. Learned Magistrate, therefore, had no benefit of such an important piece of material on record. In the facts and circumstances, such evidence would have been easily available, if the incident as alleged ::: Uploaded on - 22/02/2023 ::: Downloaded on - 05/06/2023 08:31:10 ::: 9 APL267.20 (J).odt had occurred. Learned Magistrate without having such a material on record, issued the process.
12. In the complaint, the names of three witnesses were cited. Learned Magistrate did not record the statement of single witness. The incident allegedly occurred on 02.10.2015. The complaint was filed on 28.10.2015. The verification statement of the complainant was recorded on 06.05.2017. Learned Magistrate passed the order of issuance of process on 20.02.2019. The first order on presentation of the complaint was passed on 20.10.2015 and the matter was posted for recording the verification statement of the complainant. Learned Magistrate took near about two years to record the verification statement. After recording the verification statement, learned Magistrate took two years to pass the order of issuance of process. It is to be noted that the complainant cannot be held responsible for all this. However, this would reflect upon the approach of the Court. In the facts and circumstances, I am of the view that no case is made out for issuance of process. The order of issuance of process was without compliance of the provisions of Section 202 of the Cr.P.C. The ::: Uploaded on - 22/02/2023 ::: Downloaded on - 05/06/2023 08:31:10 ::: 10 APL267.20 (J).odt application, therefore, deserves to be allowed.
13. Accordingly, the Criminal Application is allowed.
i] The order dated 20.02.2019 passed by the learned Judicial Magistrate, First Class, 2nd Court, Mehkar in Misc. Cri. Case No. 365 of 2015, issuing process against the applicants/accused for the offence punishable under Section 504 read with Section 34 of the Indian Penal Code, is quashed and set aside. The complaint stands dismissed.
ii] The criminal application stands disposed of.
( G. A. SANAP, J. ) Diwale ::: Uploaded on - 22/02/2023 ::: Downloaded on - 05/06/2023 08:31:10 :::