Bombay High Court
Ramesh Ashruba Ghodake vs The State Of Maharashtra on 7 September, 2012
(1) Cri.W.P. No. 402 / 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AT AURANGABAD.
Criminal Writ Petition No. 402 of 2011
1. Ramesh Ashruba Ghodake,
Age : 56 years,
Occupation : Service (P.I.),
Police Station, Tuljapur,
Taluka : Tuljapur,
District : Osmanabad.
2. Kiran Nagnath Mundhe,
Age : 32 years,
Occupation : Service,
P.C.B. No. 729,
R/o. Police Station, Tuljapur.
3. Vinod Manohar Matrewar,
Age : 30 years,
Occupation : Service (PSI),
R/o. as above.
4. Suresh Namdeorao Sable,
Age : 45 years,
Occupation : Service (PSI),
R/o. as above.
5. Lakhan Subhash Gaikwad,
Age : 33 years,
Occupation : Service,
P.N.B. No. 125,
R/o. as above.
6. Rajabhau Gabinath Satpute,
Age : 38 years,
Occupation : Service,
H.C.B. No. 816, R/o. as above.
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(2) Cri.W.P. No. 402 / 2011
7. Mukund Lahu Giri,
Age : 33 years,
Occupation : Service,
P.N.B. No. 829,
R/o. as above.
8. Kalyan J. Moharkar,
Age : 50 years,
Occupation : Service,
H.C.B. No. 1100, .. Petitioners
R/o. as above. (Original accused)
versus
1. The State of Maharashtra.
2. The Superintendent of Police,
Osmanabad,
District : Osmanabad.
3. Sau. Uma Rajebhau @ Rajendra Mane,
Age : 32 years,
Occupation : Household, .. Respondents
R/o. HUDCO, Tuljapur, (No.3 - Original
Taluka : Tuljapur, complainant )
District : Osmanabad.
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Mr. K.S. Bhore, Advocate, for the petitioners.
Mr. N.B. Patil, Additional Public Prosecutor, for
respondent nos.1 and 2.
Mr. V.V. Ingle, Advocate, for respondent no.3.
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(3) Cri.W.P. No. 402 / 2011
CORAM : SHRIHARI P. DAVARE, J.
DATE : 7TH SEPTEMBER 2012
ORAL JUDGMENT :
1. Heard Adv. Mr. K.S. Bhore for the petitioners, learned APP Mr. N.B. Patil for respondent nos.1 and 2, and Adv. Adv. Mr. V.V. Ingle for respondent nos.1 and 2.
2. At the request of learned Advocate for the petitioners, leave to amend granted and the order passed by the revisional court, to the extent of Clause (iii) thereof, is permitted to be challenged in the present petition. Amendment be carried out forthwith.
3. Rule. Rule made returnable forthwith. With the consent of learned Counsel for the parties, taken up for final hearing.
4. By the present petition filed by the petitioners, under Article 227 of the Constitution of India, and also under Section 482 of the Code of Criminal Procedure, 1973, they have prayed for quashing and setting aside the order dated 15-2-2011, passed by the learned Judicial Magistrate (F.C.), Tuljapur [District : Osmanabad], below Exhibit 1 in Criminal Miscellaneous Application No. 252/2010, and also prayed for quashing and setting aside the order passed by the revisional court i.e. Additional Sessions Judge, Osmanabad, dated 21st April 2011, in Criminal Revision Application No. 29/2011, to the extent of Clause (iii) thereof.
::: Downloaded on - 09/06/2013 19:05:16 ::: (4) Cri.W.P. No. 402 / 20115. The petitioners contend that they are serving in Police Department of the State of Maharashtra. The respondent no.3 has filed complaint on 3rd December 2010 before learned Judicial Magistrate (F.C.), Tuljapur, alleging that the petitioners have committed offences punishable under Sections 218, 219, 323, 324, 354, 504 and 506 of Indian Penal Code. Learned Judicial Magistrate (F.C.), Tuljapur, issued process on the said complaint by order dated 15-2-2011 under Sections 218, 219, 323, 324, read with Section 34 of Indian Penal Code, but the learned Magistrate dismissed the complaint under Sections 354, 504 and 506 of IPC and copy of the said order is annexed with the petition at Exhibit "A". The petitioners challenged the said order dated 15-2-2011 passed by the learned Judicial Magistrate (F.C.) by filing Criminal Revision Application No. 29 of 2011 before learned Sessions Judge, Osmanabad. After hearing the parties, learned revisional court partly allowed the said revision filed by the petitioners and order of issuance of process under Sections 218 and 219 of Indian Penal Code was set aside by order dated 21st April 2011, but directed to proceed against the petitioners for the offences punishable under Sections 323, 324, read with Section 34 of IPC, and copy of the said order is annexed with the petition at Exhibit "B". Being aggrieved and dissatisfied by both the said orders, the petitioners have approached this Court by the present petition for the prayers as set out herein above.
6. According to the petitioners, the complaint itself discloses that the petitioner no.1 was not present on the alleged date of incident i.e. 15-11-2010. Moreover, petitioner no.2 herein also has filed complaint against respondent no.3 herein, and her husband and daughters, on the ::: Downloaded on - 09/06/2013 19:05:16 ::: (5) Cri.W.P. No. 402 / 2011 same day i.e. 15-11-2010, for the offences punishable under Sections 353, 323, 507, 506, read with Section 34 of IPC, under C.R.No. 161/2010 and copy thereof is annexed with the petition at Exhibit "C". The petitioners also contend that on the date of alleged incident, it would be evident from station diary of Tuljapur Police Station, that the petitioner no.1 was at Osmanabad for parade and petitioner no.3 was in a Police Station and the complainant gave threat to the petitioner no.3, that she would commit suicide, whereas petitioner no.4 was on patrolling duty and was not present in the Police Station and petitioner no.6 was on weekly holiday, whereas petitioner no.7 was at Central Jail, Osmanabad, for discharging his duties. According to the petitioners, there are no allegations against the petitioners except petitioner no.2 and the said allegations are made against them since he had filed complaint against respondent no.3 and his family members.
7. In fact, it is stated by the petitioners that the husband of the complainant i.e. respondent no.3 has made an application to respondent no.2 for getting police security. The petitioner no.1 submitted on the said application stating that 12 serious offences have been registered against husband of the complainant and the authorities have already forwarded proposal for externment of the husband of respondent no.3 and copy thereof is annexed with the petition at Exhibit "D". Hence, it is submitted by the petitioners that the respondent no.3 has filed false complaint against the petitioners with a view to harass the petitioners which is abuse of process of law and, therefore, urged that it be quashed and set aside. It is further submitted that the husband of respondent no.3 had filed Criminal Writ Petition No. 688 of 2010 for restraining the petitioners and Police ::: Downloaded on - 09/06/2013 19:05:16 ::: (6) Cri.W.P. No. 402 / 2011 machinery from issuing externment notices, but the said petition came to be dismissed as withdrawn on 4-8-2010. Accordingly, it is submitted that respondent no.3 has filed the complaint in question with ulterior motive to harass the petitioners. The petitioners submit that they have got good case on merits and, therefore, prayed that the present petition be allowed.
8. The respondent no.3 has filed affidavit in reply and denied the averments and contentions in the present petition unless admitted specifically. The respondent no.3 submits that on 8-11-2010, the respondent no.3 along with her son filed complaint against one Sau.
Prabhavati Mardikar and other persons for offence of cheating, but the Police personnel have not taken cognizance thereof. The husband of respondent no.3 also inquired about the complaint but there was no response from the petitioners. Hence, on 15-11-2010, respondent no.3 along with her sons, namely, Abhishek and Abhijeet and daughter Shivani approached the Police Station to make inquiry about the complaint, but Police did not give any response. It is submitted that at that relevant time, P.S.I. Mr. Maitrwar and P.S.I. Mr. Sable informed the respondent no.3 that her case is inquired by P.S.I. Mr. Ghodake and instructed to wait till he comes. Thereafter, P.S.I. Mr. Maitrwar had talk with P.S.I. Mr. Ghodke and then the petitioners assaulted respondent no.3 and her children. Police gave kicks and fist blows to respondent no.3 and Police personnel snatched golden Ganthan and one ear ring of the complainant was lost. The complainant and her children sustained serious injuries during the incident and they were admitted in the Civil Hospital on 15-11-2010, and copy of the medical certificate issued by the General Hospital, Osmanabad, dated 18-11-2010 is annexed along with the reply at Exhibit ::: Downloaded on - 09/06/2013 19:05:16 ::: (7) Cri.W.P. No. 402 / 2011 "R-1".
9. Accordingly, respondent no.3 submits that the Police personnel prepared a false story on 17-11-2010 and arrested the respondent no.3 from the hospital for the offence in connection with Crime No. 161/2010, but on the contrary, Police had not registered complaint of respondent no.3. Hence, she was constrained to file private complaint before learned Judicial Magistrate (F.C.), Tuljapur, on which learned Judicial Magistrate (F.C.) issued process against the petitioners for the offences punishable under Sections 218, 219, 323 and 324, read with Section 34 of IPC on 15-2-2011. Thereafter, petitioners filed Criminal Revision Application No. 29/2011 before Court of Sessions at Osmanabad, which was partly allowed by order dated 21st April 2011, by the learned Additional Sessions Judge, Osmanabad, and order of issuance of process against the petitioners, to the extent of Sections 218 and 219 of IPC, was set aside. Accordingly, respondent no.3 has urged that the present petition bears no substance and the same is devoid of merits and, therefore, same be dismissed.
10. I have perused the impugned order dated 15-2-2011 passed by the learned Judicial Magistrate (F.C.), Tuljapur, in respect of issuance of process, and the impugned order dated 21st April 2011, passed by the learned Additional Sessions Judge, Osmanabad, i.e. revisional court, modifying the said order, so also, contents of the present petition, annexures to the petition, affidavit in reply filed by respondent no.3, and also heard learned respective Counsel for the parties.
::: Downloaded on - 09/06/2013 19:05:16 ::: (8) Cri.W.P. No. 402 / 201111. At the outset, the respondent no.3 had filed private complaint against the petitioners on 3rd December 2010, before learned Judicial Magistrate (F.C.), Tuljapur, for the offences punishable under Sections 218, 219, 324, 323, 354, 504 and 506 of Indian Penal Code. Accordingly, learned Judicial Magistrate (F.C.) directed the complainant to lead evidence and the complainant examined herself and she also examined her brother-in-law Annasaheb Digambar Mane, one Santosh Bajrang Sonwane, and injured Abhijeet and Abhishek. Prima facie on the basis of averments made in the complaint and the evidence of aforesaid witnesses, learned Judicial Magistrate (F.C.) was satisfied that there was evidence against the petitioners and, therefore, issued process against them under Sections 218, 219, 323 and 324, read with Section 34 of IPC, and also observed that there was no material on record to issue process under Sections 354, 504 and 506 of IPC, and the complaint for the said offences was dismissed. Being aggrieved and dissatisfied by the said order, the petitioners herein had preferred Criminal Revision Application No. 29/2011 before Court of Sessions at Osmanabad. After hearing learned Counsel for parties, learned Additional Sessions Judge, Osmanabad, allowed the said revision partly and order of issuance of process against the petitioners under Sections 218 and 219 of IPC was set aside. However, while passing the said order, he directed that Miscellaneous Application No. 252/2010 shall proceed against the petitioners herein for the offences punishable under Sections 323, 324, read with Section 34 of IPC. Hence, said very Clause (iii) of the revisional order and the order of issuance of process passed by the learned Judicial Magistrate (F.C.) was assailed.
12. Bare perusal of the contents of the complaint and more ::: Downloaded on - 09/06/2013 19:05:16 ::: (9) Cri.W.P. No. 402 / 2011 particularly, paragraphs 4 and 5 thereof, apparently disclose the material in respect of offences punishable under Sections 323, 324, read with Section 34 of Indian Penal Code, against the petitioners. Moreover, corresponding injury certificates issued by the General Hospital, Osmanabad, dated 18-11-2010, pertaining Abhijeet Rajendra Mane, Abhishek Rajendra Mane and Uma Rajendra Mane i.e. complainant and respondent no.3 herein have been produced at Exhibit "R-1". On perusal of the photo copies of injury certificates, it appears that the complainant and said witnesses were examined in the said hospital on 15-11-2010 and they sustained respective injuries as stated therein, which are of simple nature. It is mentioned in the said certificates that the said injuries are fresh. The witnesses Abhijeet and Abhishek sustained the said injuries by hard and blunt objects, whereas respondent no.3 i.e. complainant sustained injuries by sharp weapon and blunt object. The said injury certificates apparently are in tune with the averments and contentions made by the respondent no.3 in the complaint.
13. On perusal of the order passed by the learned Judicial Magistrate (F.C.), Tuljapur, dated 15-2-2011, it appears that he had considered grant of sanction under Section 197 of the Code of Criminal Procedure, and dealt with it aptly. Moreover, learned revisional court also dealt with facts of the case and the legal position of the matter, and considering the very Sections 218 and 219 of IPC, and the material on record, set aside the issuance of process against the petitioners under said Sections. However, since there was sufficient material against the petitioners under Sections 323, 324, read with Section 34, learned revisional court directed to proceed against the petitioners therefor, ::: Downloaded on - 09/06/2013 19:05:16 ::: (10) Cri.W.P. No. 402 / 2011 allowing the revision petition partly.
14. Having comprehensive view of the matter, I do not find any error in the impugned orders. Hence, present petition deserves to be dismissed.
15. In the result, present petition lacks merits and, therefore, same stands dismissed. Rule is discharged.
ig (SHRIHARI P. DAVARE)
JUDGE
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bgp/kwp402
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