The judgment in case Tulsiram
Bhanudas Kamble and others versus State of
Maharashtra 2000 Cri LJ 1566 Bombay has already been
overruled by Honorable Supreme Court of India in State of
Maharashtra Versus Tulsiram AIR 2007 SC 3042. The
facts of other judgements relied upon by Ld counsel for
accused are different from the facts of the present case and
are not applicable to the present case.
A Division Bench of this Court of which one of us (Vishnu Sahai, J.,) was a member, in the judgment rendered on 5-4-1999 in Criminal Appeal No. 32 of 1996 Tulshiram Bhanudas Kambale and others v. The State of Maharashtra, with Criminal Appeal No. 71 of 1996 Ganesh Kisan Shirsat @ Paparkar v. The State of Maharashtra, with Criminal Appeal No. 83 of 1996 Dhanaji Dasharath Kothalkar v. The State of Maharashtra, all considered in detail the question whether merely as a consequence of the delay in sending a copy of the F.I.R. to the Magistrate, would it be open to the Court to construe mat the F.I.R. was ante-timed. It answered the question in the negative, relying upon the two decisions of the Supreme
Court reported in 1997 S.C.C.(Cri.)
In a judgment of a
Division Bench of this Court in Tulshiram Bhanudas Kambale vs.
State of Maharashtra,15 it has been held that Section 157 of the
Code of Criminal Procedure, 1973, casts an obligatory duty on the
Police to forthwith send a copy of the FIR to the Magistrate and
whenever the police fail to discharge this mandatory duty it is under a
legal obligation to furnish the reasons. Before an inference is drawn
that the FIR is antedated, some circumstances have to be shown
either from the cross-examination of the relevant witnesses or from
material appearing on record that would probabalise such an
15 2000 CRI. L.J. 1566
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inference.16 In this regard, it would be material to note the deposition
of the Investigating Officer, PW 13. PW 13 deposed that after the
registration of the crime, a copy of the FIR was sent to the Judicial
Magistrate, First Class, Akkalkot on the day on which the crime was
registered. PW 13 stated that he has entered the filing of the FIR in
the Station Diary and he denied the suggestion that he has prepared
the FIR and the panchanama on a later date and mentioned an
earlier date and time.
Moreover, even if they were sealed at the time of recovery, as the
evidence of PW-1 Chetan proves that he was shown those ornaments and
articles for the purpose of identification, and there is no evidence to prove
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that subsequent thereto, they were again sealed. To substantiate his
submission, the learned counsel for the Accused has relied upon the two
authorities that of Tulshiram Bhanudas Kambale & Ors. Vs. State of
Maharashtra, 2000 CRI.L.J. 1566, and Amarjit Singh alias Babbu Vs.
State of Punjab, 1995 Supp. (3) SCC 217.
Moreover, even if they were sealed at the time of recovery, as the
evidence of PW-1 Chetan proves that he was shown those ornaments and
articles for the purpose of identification, and there is no evidence to prove
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that subsequent thereto, they were again sealed. To substantiate his
submission, the learned counsel for the Accused has relied upon the two
authorities that of Tulshiram Bhanudas Kambale & Ors. Vs. State of
Maharashtra, 2000 CRI.L.J. 1566, and Amarjit Singh alias Babbu Vs.
State of Punjab, 1995 Supp. (3) SCC 217.