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Bombay High Court · body

2009 DIGILAW 6 (BOM)

Pradeep Rohidas Sonwane v. State of Maharashtra

2009-01-05

S.S.SHINDE

body2009
JUDGMENT 1. The present application is filed for quashing the further proceedings in R.C.C.No. 91/2001 pending before the learned Judicial Magistrate, First Class, Navapur. 2. Brief facts of the case are as under :-On 30th June, 2001 after midnight a riot broke out in front of the Poolgama parlour between the members of Hindu and Muslim community wherein the second respondent was involved in the activities of riot and therefore, the complaint was filed against the second respondent and his other accomplices vide Crime No. 53/2001 and cross complaint was also filed against the Muslim members vide Crime No. 54/2001 at the Navapur Police Station where the present applicant was incharge. 3. On 1st July, 2001 all the members of Hindu and Muslim community, including the second respondent were arrested and produced before the learned Magistrate, who granted M.C.R. and bail to all of them including second respondent. 4. The applicant, being concerned about law and order situation in Navapur town, had detained all the members of rival groups under section 151 (3) of Criminal Procedure Code for a period of three days i.e. till 4/7/2001. The statements were also recorded in both the crimes. No complaint about ill-treatment or any other complaint against the applicant was made before the learned Magistrate by the second respondent on his production before the learned Magistrate on 1st July, 2001. Even, in the bail application of second respondent no averments were made regarding illtreatment. The applicant/petitioner has filed his own affidavit with reasons for initiating the order of detention under section 151 (3) of Criminal Procedure Code, detaining the second respondent and his accomplices as well as the rival Muslim group. 5. On 7th August, 2001, the second respondent filed a private complaint before the Judicial Magistrate, First Class under sections 323, 342, 220, 504, 506, 193 of Indian Penal Code and under section 147 of the Bombay Police Act against the applicant and on the same day i.e. on 7th August, 2001 the learned Judicial Magistrate, First Class issued process against the petitioner/applicant in Regular Criminal Case No. 91/01. Hence, this application is filed by the applicant for quashing the proceedings and the complaint filed by the second respondent. 6. The learned counsel appearing for the applicant submitted that the present petitioner was incharge of the concerned police station and he has discharged his duties in his official capacity. Hence, this application is filed by the applicant for quashing the proceedings and the complaint filed by the second respondent. 6. The learned counsel appearing for the applicant submitted that the present petitioner was incharge of the concerned police station and he has discharged his duties in his official capacity. He further submitted that the order passed by the learned Magistrate is unlawful, illegal and withoutjurisdiction in as much as the provisions of section 197 of the Criminal Procedure Code regarding prior sanction are not invoked. He further submitted that the Magistrate failed to consider that the procedure of arrest in Crime No. 53/2001 registered on 1/7/2001 against the second respondent as well as the detention order under section 151 (3) of Criminal Procedure Code was instituted against the second respondent after following due procedure of law as well as by informing the relatives of the second respondent. It is further submitted that the Magistrate failed to consider that the second respondent had never made a complaint of ill-treatment at the time of remand as well as in the bail application or while granting bail. Secondly, the second respondent has lodged complaint before the learned Magistrate after one month from the date of the incident. The Magistrate, on the same day on which the complaint is lodged, issued the process. The learned counsel further submitted that the order of process is a order in judicial proceedings and the learned Magistrate ought to have considered the various factors while issuing the above order. The order, therefore, suffers from the vice of staleness and lack of application of mind. It is further submitted that the complaint of respondent No. 2 on the face of it, does not disclose any offence. Therefore, such complaint requires to be quashed. 7. The learned A.P.P. supported the order issued by the Magistrate. Though the respondent No. 2 is served, none appears for him. 8. Heard learned counsel appearing for the applicant and learned A.P.P. for the respondent No. 1 State. 9. Perused the order passed by the Magistrate issuing process. Prima facie, I am of the opinion that the order passed by the Magistrate is cryptic. The order passed by the Magistrate issuing process is passed on the same day on the date of application. 9. Perused the order passed by the Magistrate issuing process. Prima facie, I am of the opinion that the order passed by the Magistrate is cryptic. The order passed by the Magistrate issuing process is passed on the same day on the date of application. It would be relevant to mention that the respondent No. belatedly filed the complaint for the action of the petitioner/applicant, who arrested him on 1st July, 2001. The complaint is filed on 7th August, 2001. The complaint was filed after lapse of 37 days from the date of arrest of the respondent No. 2. It is the fact that in a bail application which was preferred by the present respondent No. 2, there was no mention of illtreatment by the petitioner/applicant who was incharge Police Officer, even there were no averments either in the application for bail about the illtreatment by the present petitioner/applicant. Even at the time of remand, there was no complaint of ill-treatment by the second respondent to the Magistrate. Further important aspects of the matter is that the petitioner/applicant has acted in official capacity to discharge his duties. Whatever actions have been taken by the petitioner/applicant, are in his official capacity. In my considered view, the Magistrate should have ascertain each and every aspect of the matter and should not have issued the process so casually on the same day on which complaint was filed by the respondent No. 2. It is pertinent to note that though the private complaint filed by the respondent No. 2 relates to the incident of 1st July, 2001, the complaint is filed on 7th August, 2001. It is apparent that the said complaint is filed afterthought. In my cosidered view, the order passed by the learned Magistrate, issuing process against the petitioner/applicant on 7th August, 2001 under section 323, 342, 220, 504, 506, 193 of I.P.C. and under section 147 of Bombay Police Act is not sustainable. 10. This Court while issuing the rule on 1st April, 2002 continued the interim relief granted on earlier date of hearing by which the order of the Magistrate issuing process dated 7th August, 2001 was stayed. 11. In view of above discussion, the application succeeds. The application is allowed in terms of prayer clause "B". 10. This Court while issuing the rule on 1st April, 2002 continued the interim relief granted on earlier date of hearing by which the order of the Magistrate issuing process dated 7th August, 2001 was stayed. 11. In view of above discussion, the application succeeds. The application is allowed in terms of prayer clause "B". In the result, the impugned order dated 7th August, 2001 of issuance of process passed against the petitioner/applicant by the learned Judicial Magistrate, First Class, Navapur in R.C.C.No. 91/2001 is quashed and set aside. Rule is made absolute. Application is disposed of.