Bombay High Court
Vyankatesh S/O Trimbakrao Kunnawar vs Prabodh S/O Sdashiv Sadavarte And ... on 8 June, 2016
Author: Z.A. Haq
Bench: Z.A. Haq
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.459 OF 2014
Prabodh Sadashiv Sadavarte,
Aged about 71 years,
Occupation - Legal Practitioner,
R/o 138, Ram Nagar, Nagpur. .... PETITIONER
VERSUS
1) State of Maharashtra,
through Assistant Government Pleader,
High Court, Nagpur.
2) Madhukar Sadashiv Sadavarte,
Aged about 61 years,
R/o 195, Surendra Nagar, Behind
Dr. Dangre Clinic, Nagpur,
through Police Station Ajni.
3) Sou. Sumati w/o Ajay Mahajan,
Aged about 55 years,
Occupation - Household,
R/o C/o Madhukar Tryambak Mahajan,
Saoji Galli, Near Shivaji High School,
Sakharkherda, Tahsil-Sindkhedraja,
District Buldana, through Police
State Sakharkherda.
4) Chitralekha Suresh Mahajan,
Aged about 66 years,
Occupation - Household,
R/o Saoji Galli, Near Shivaji High
School, Sakharkherda, Tahsil-
Sindkhedraja, District - Buldana,
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through Police Station Sakharkherda.
5) Sou. Veena Kishor Kashikar,
Aged about 62 years,
Occupation - Household.
6) Mohan Govindrao Kashikar,
Aged Major.
7) Vijay Govindrao Kashikar,
Aged about 61 years,
Nos.5 to 7 R/o Kashikar Wada,
Old Bhandara Road, Itwari, Nagpur,
through Police Station Lakadganj).
8) Anuradha Ashok Paturkar,
Aged about 63 years,
R/o Shivaji Nagar, Hingoli, Tahsil &
District Hingoli,
through Police Station Hingoli.
9) Sou. Smita w/o Arun Kashikar,
Aged about 58 years,
C/o Arun Govindrao Kashikar,
Opposite Keshrimal Kanya School,
Nagpur Road, Sudampuri, Wardha,
District Wardha, through Police
Station, Wardha. .... RESPONDENTS
______________________________________________________________
Shri K.P. Sadavarte, Advocate for the petitioner,
Shri N.B. Jawade, Addl.P.P. for the respondent No.1,
Shri S.P. Bhandarkar, Advocate for the respondent Nos.2 to 9.
______________________________________________________________
AND
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CRIMINAL WRIT PETITION NO.460 OF 2014
Prabodh Sadashiv Sadavarte,
Aged about 71 years,
Occupation - Legal Practitioner,
R/o 138, Ram Nagar, Nagpur. .... PETITIONER
VERSUS
1) State of Maharashtra,
through Assistant Government Pleader,
High Court, Nagpur.
2) Kishor s/o Govindrao Kashikar,
Aged about 73 years,
Occupation - Business,
3) Sou. Jaymala w/o Vijay Kashikar,
Aged about 55 years,
Occupation - Household,
Nos. 2 and 3 Both R/o Kashikar
Wada, Old Bhandara Road, Itwari,
Nagpur, through Police Station
Lakadganj, Nagpur.
4) Smt. Shobha wd/o Vilas Sadavarte,
Aged about 58 years,
Occupation - Household.
5) Shri Nishant s/o Vilas Sadavarte,
Aged about 35 years,
Occupation - Business.
6) Shri Ajit s/o Vilas Sadavarte,
Aged about 32 years,
Occupation - Business,
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7) Sou. Rajashree w/o Suraj Minase
@ Rajashree d/o Vilas Sadavarte,
Aged about 39 years,
Occupation - Household.
Nos. 4 to 7 R/o Shivaji Nagar,
Mehkar, Tahsil-Mehkar, District-
Buldana, Police Station Mehkar,
District Buldana.
8) Shri Vyankatesh Tryambakrao Kunnawar,
Partner of M/s. Saptagiri Realtors,
Aged Major, Occupation - Business,
3rd Floor, N.K.Y. Towers, Ajni Square,
Wardha Road, Nagpur,
through Police Station Ajni, Nagpur. .... RESPONDENTS
______________________________________________________________
Shri K.P. Sadavarte, Advocate for the petitioner,
Shri N.B. Jawade, Addl.P.P. for respondent No.1,
Shri P.A. Markandeywar & Shri S.P. Bhandarkar, Advocates for
respondent Nos.2 to 7,
Shri M.B. Naidu, Advocate for respondent No.8.
______________________________________________________________
AND
CRIMINAL WRIT PETITION NO.550 OF 2014
1) Shri Kishor s/o Govindrao Kashikar,
Aged about 71 years,
Occupation - Agriculturist,
R/o Old Motor Stand, Itwari, Nagpur.
2) Smt. Shobha wd/o Vilas Sadavarte,
Aged about 60 years,
Occupation - Household.
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3) Shri Nishant s/o Vilas Sadavarte,
Aged about 32 years,
Occupation - Business.
4) Shri Ajit s/o Vilas Sadavarte,
Aged about 30 years,
Occupation - Business,
5) Sou. Rajshree w/o Suraj Minase,
Aged about 39 years,
Occupation - Household.
Nos.2 to 5 all R/o Shivaji Nagar,
Mehkar, Tahsil-Mehkar,
District - Buldhana.
6) Sou. Jaymala w/o Vijay Kashikar,
Aged about 60 years,
Occupation - Household,
Nos.1 and 2 both R/o Kashikar Wada,
Old Motor Stand, Itwari, Nagpur. .... PETITIONERS
VERSUS
1) State of Maharashtra,
through Assistant Government Pleader,
High Court, Nagpur.
2) Prabodh Sadashiv Sadavarte,
Aged about 72 years,
Occupation - Legal Practitioner,
R/o 138, Ram Nagar, Nagpur-33.
3) Vyankatesh Trimbakrao Kunnawar,
Partner of M/s. Saptagiri Realtors,
3rd Floor, N.K.Y. Towers,
Ajani Square, Wardha Road, Nagpur. .... RESPONDENTS
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______________________________________________________________
Shri S.P. Bhandarkar, Advocate for the petitioners,
Shri N.B. Jawade, Addl.P.P. for respondent No.1,
Shri K.P. Sadavarte, Advocate for respondent No.2,
Shri A.C. Jaltare, Advocate for respondent No.3,
______________________________________________________________
AND
CRIMINAL APPLICATION (APL) NO.318 OF 2014
Vyankatesh s/o Trimbakrao Kunnawar,
Partner M/s. Saptgiri Realtors,
3rd Floor, N.Y.K. Towers, Ajni Square,
Wardha Road, Nagpur. .... APPLICANT
VERSUS
1) Prabodh s/o Sadashiv Sadavarte,
Aged 66 years,
Occupation - Legal Practitioner and
Agriculturist,
R/o 138, Ram Nagar, Nagpur.
3) State of Maharashtra,
through PSO, PS Ambazari (Nagpur City). .... NON-APPLICANTS
______________________________________________________________
Shri A.C. Jaltare, Advocate for the applicant,
Shri K.P. Sadavarte, Advocate for non-applicant No.1,
Shri N.B. Jawade, Addl.P.P. for non-applicant No.2.
______________________________________________________________
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CORAM : Z.A. HAQ, J.
DATE OF RESERVING THE JUDGMENT
: 03-05-2016
DATE OF PRONOUNCING THE JUDGMENT : 08-06-2016
ORAL JUDGMENT :
1. Heard Shri K.P. Sadavarte, Advocate for the petitioner (original complainant-hereinafter referred to as "the complainant") Shri N.B. Jawade, Additional Public Prosecutor for the respondent No.1-State of Maharashtra and Shri S.P. Bhandarkar, Advocate for the respondent Nos.2 to 9 in Writ Petition No.459/2014 (hereinafter referred to as "the accused").
In Writ Petition No.460/2014, heard Shri K.P. Sadavarte, Advocate for the petitioner (original complainant), Shri N.B. Jawade, Additional Public Prosecutor for respondent No.1-State of Maharashtra, Shri P.A. Markandeywar, Advocate and Shri S.P. Bhandarkar, Advocate for the respondent Nos.2 to 7 (accused) and Shri N.B. Naidu, Advocate for the respondent No.8 (accused).
In Writ Petition No.550/2014, heard Shri S.P. Bhandarkar, Advocate for the petitioners (accused), Shri N.B. Jawade, Additional Public Prosecutor for the respondent No.1-State of Maharashtra and Shri K.P. Sadavarte, Advocate for the respondent No.2 (complainant).
::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 :::8 wp459,460,550.14 & apl318.14 In Criminal Application (APL) No.318/2014, heard Shri A.C. Jaltare, Advocate for the applicant (accused), Shri K.P. Sadavarte, Advocate for the non-applicant No.1 (complainant) and Shri N.B. Jawade, Additional Public Prosecutor for the non-applicant No.2-State of Maharashtra.
2. The learned Chief Judicial Magistrate by the order passed on 29-07-2013 in the complaint filed by the complainant, directed issuance of process against the accused Nos.1 to 5, 10 and 15 for offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code and dismissed the complaint against the accused Nos.6 to 9 and 11 to 14. This order was challenged before the Sessions Court in revision applications which are decided by the Sessions Court by the common judgment dated 26-03-2014. As the judgment and order challenged in all these matters are same and the parties are common, these matters are being disposed by common judgment.
3. Rule. Rule made returnable forthwith.
4. The complainant filed complaint before the Chief Judicial ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 9 wp459,460,550.14 & apl318.14 Magistrate contending that the accused (fifteen in number) have committed offences punishable under Sections 193, 196, 197, 199, 200, 201, 202, 209, 403, 406, 418, 420, 423, 424, 451, 465, 468, 471 read with Sections 120-B and 34 of the Indian Penal Code and prayed that the cognizance be taken and/or the Police Station Officer be directed to investigate the matter and submit report under Section 156(3) of the Code of Criminal Procedure. The complainant made other prayers.
The learned Chief Judicial Magistrate after considering the verification/statement of the complainant in support of the complaint and after considering the documents filed by the complainant, by the order dated 29-07-2013 concluded that there was prima-facie case against the accused Nos.1 to 5, 10 and 15 for offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code and accordingly directed issuance of process against the accused Nos.1 to 5, 10 and 15. The learned Chief Judicial Magistrate did not accept the contentions of the complainant against the accused Nos.1 to 5, 10 and 15 regarding other offences stated in the complaint. As far as accused Nos.6 to 9 and 11 to 14 are concerned, the learned Chief Judicial Magistrate dismissed the complaint against them.
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5. The complainant filed Criminal Revision No.232/2013 before the Sessions Court making the grievance that the learned Chief Judicial Magistrate committed an error in dismissing the complaint against the accused Nos.6 to 9 and 11 to 14. The complainant filed Criminal Revision No.245/2013 making the grievance that the learned Chief Judicial Magistrate committed an error in not issuing process against the accused Nos.1 to 5, 10 and 15 for offences punishable under Sections 193, 196, 197, 199, 200, 201, 202, 209, 403, 418, 423, 424, 451, 465, 468, 471 read with Sections 120-B and 34 of the Indian Penal Code. The accused Nos. 1 to 5 and 10 filed Criminal Revision No.276/2013 challenging the order passed by the learned Chief Judicial Magistrate directing issuance of process against them for offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code. The accused No.15 filed Criminal Revision No.275/2013 challenging the order passed by the learned Chief Judicial Magistrate directing issuance of process against him for offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code.
The learned Additional Sessions Judge, by the judgment given on 26-03-2014, disposed all the above mentioned criminal revisions. The Criminal Revision No.232/2013 and Criminal Revision ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 11 wp459,460,550.14 & apl318.14 No.245/2013 are dismissed. The Criminal Revision No.275/2013 and Criminal Revision No.276/2013 are partly allowed and the order passed by the learned Chief Judicial Magistrate directing issuance of process against the accused Nos.1 to 5, 10 and 15 for offence punishable under Section 406 read with Section 34 of the Indian Penal Code is set aside and the order passed by the learned Chief Judicial Magistrate directing issuance of process against the accused Nos.1 to 5, 10 and 15 for offence punishable under Section 420 read with Section 34 of the Indian Penal Code is maintained. The order passed by the learned Chief Judicial Magistrate dismissing the complaint against the accused Nos.6 to 9 and 11 to 14 is maintained.
The present matters are filed by the respective parties seeking redressal of their grievance.
6. The grievance of the complainant is that all the accused are liable for prosecution and punishment for offences punishable under Sections 193, 196, 197, 199, 200, 201, 202, 209, 403, 406, 418, 420, 423, 424, 451, 465, 468, 471 read with Sections 120-B and 34 of the Indian Penal Code. The grievance of accused Nos.1 to 5, 10 and 15 is that they are not liable for prosecution for offence punishable under Section 420 read with Section 34 of the Indian Penal Code and they ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 12 wp459,460,550.14 & apl318.14 pray that the complaint filed against them be dismissed.
7. I have heard the learned Advocates for the respective parties and the learned Additional Public Prosecutor for the State of Maharashtra. With the assistance of the learned Advocates for the respective parties and the learned Additional Public Prosecutor, I have examined the record.
The order passed by the learned Chief Judicial Magistrate on 29-07-2013 shows that the learned Chief Judicial Magistrate has not examined as to whether the accused are liable for prosecution under Sections 193, 196, 197, 199, 200, 201, 202, 209, 403, 418, 423, 424, 451, 465, 468, 471 read with Sections 120-B and 34 of the Indian Penal Code. Though the learned Chief Judicial Magistrate examined the existence of prima-facie material on record for directing issuance of process against accused Nos.1 to 5, 10 and 15 for offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code, I find that the learned Chief Judicial Magistrate has not recorded any reasons as to why directions to issue process against the accused Nos.1 to 5, 10 and 15 for the other offences are not given.
Though some of the offences alleged to have been committed by the accused fall in the category of offences in respect of which the bar of ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 13 wp459,460,550.14 & apl318.14 Section 195 of the Code of Criminal Procedure may be attracted, in my view, the learned Chief Judicial Magistrate will have to apply his mind on this aspect also and record his conclusions. I find that the learned Chief Judicial Magistrate has not applied his mind at all to this aspect.
Similarly, I find that the learned Chief Judicial Magistrate has not recorded any reasons for dismissing the complaint against the accused Nos.6 to 9 and 11 to 14.
Though it is argued on behalf of the accused, specially accused Nos.1 to 5, 10 and 15 that the learned Additional Sessions Judge has properly considered all the relevant aspects, in my view, the application of mind on all the relevant aspects should be by the Court of first instance i.e. the learned Chief Judicial Magistrate. It is well established that the revisional Court has to examine the legality and propriety of the order challenged before it and the revisional Court cannot delve into the material on the record as an original Court.
In view of the above, I find that the learned Chief Judicial Magistrate has committed an error in not adverting to the relevant aspects and the material on record and has not recorded any reasons for not directing issuance of process against the accused Nos.1 to 5, 10 and 15 for other offences referred in the complaint. Similarly, the learned Chief Judicial Magistrate has committed an error by not ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 14 wp459,460,550.14 & apl318.14 recording any reasons for dismissing the complaint against the accused Nos.6 to 9 and 11 to 14.
8. The learned Advocate for the accused No.15 has submitted that prima-facie case is not made out against the accused No.15 for any of the offence referred in the complaint and the order passed by the learned Chief Judicial Magistrate and maintained by the learned Additional Sessions Judge directing issuance of process against the accused No.15 for the offence punishable under Section 420 read with Section 34 of the Indian Penal Code is unsustainable. However, on going through the complaint, specially paragraph Nos.18, 19, 20, 21 and 23 of the complaint and the documents filed by the complainant in support of the complaint, I find that prima-facie conclusions of the learned Chief Judicial Magistrate and the learned Additional Sessions Judge for directing issuance of process against the accused No.15 for offence punishable under Section 420 read with Section 34 of the Indian Penal Code cannot be faulted with.
Though the learned Advocate for the accused No.15 has supported the judgment passed by the learned Additional Sessions Judge by which the order passed by the learned Chief Judicial Magistrate is set aside to the extent of directions regarding issuance of ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 15 wp459,460,550.14 & apl318.14 process for the offence punishable under Section 406 read with Section 34 of the Indian Penal Code, I find that the conclusions of the learned Chief Judicial Magistrate for directing issuance of process against accused No.15 for offence punishable under Section 406 read with Section 34 of the Indian Penal Code are proper and should not have been interfered by the learned Additional Sessions Judge in revisional jurisdiction.
9. For the above reasons, the following order is passed :
(i) The judgment passed by the learned Additional Sessions Judge in Criminal Revision No.232/2013, Criminal Revision No.245/2013, Criminal Revision No.275/2013 and Criminal Revision No.276/2013 is set aside.
(ii) The order passed by the learned Chief Judicial Magistrate in Regular Criminal Case No.268/2007 on 29-07-2013 directing issuance of process against the accused Nos.1 to 5, 10 and 15 for the offences punishable under Sections 406 and 420 read with Section 34 of the Indian Penal Code is restored.
(iii) The order passed by the learned Chief Judicial Magistrate dismissing the complaint against accused Nos.1 to 5, 10 ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 ::: 16 wp459,460,550.14 & apl318.14 and 15 for the offences punishable under Sections 193, 196, 197, 199, 201, 202, 209, 403, 418, 423, 424, 451, 465, 468, 471 read with Section 120-B and 34 of the Indian Penal Code is quashed.
The order passed by the learned Chief Judicial Magistrate dismissing the complaint against the accused Nos.6 to 9 and 11 to 14 is quashed.
(iv) The matter is remitted to the learned Chief Judicial Magistrate for considering whether process is to be issued against the accused Nos.1 to 5, 10 and 15 for other offences.
The learned Chief Judicial Magistrate shall also consider whether process is required to be issued against the accused Nos.6 to 9 and 11 to 14 for the offences alleged in the complaint.
(v) The parties shall appear before the learned Chief Judicial Magistrate, Nagpur on 15-07-2016 at 11-00 a.m.
(vi) Rule is made absolute in the above terms in Writ Petition No.459/2014 and Writ Petition No.460/2014. Writ Petition No.550/2014 is dismissed. Criminal Application (APL) No.318/2014 is dismissed.
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(vii) In the circumstances, the parties to bear their own costs.
JUDGE Criminal Application (APPP) No.746/2014 & 809/2014 In Criminal Application (APL) No.318/2014.
In view of disposal of main application, the applications for grant of time to file certified copies of revisions and order passed by the learned Sessions Judge have become infructuous. The criminal applications are disposed accordingly.
JUDGE pma ::: Uploaded on - 09/06/2016 ::: Downloaded on - 30/07/2016 04:40:56 :::