Research › Search › Judgment

Bombay High Court · body

2010 DIGILAW 635 (BOM)

Kiran Vitthal Sabale v. State of Maharashtra

2010-04-23

A.V.NIRGUDE

body2010
Judgment :- 1. The petitioners Advocate is allowed to amend the petition for adding name of the respondent No.7 as 'Sunanda Kiran Sabale'. Amendment be carried out forthwith. 2. Heard. 3. Rule, Rule made returnable forthwith. With consent of the parties, petition is taken up for final hearing. 4. This Criminal Writ Petition is filed against the Judgment and order passed by the learned Sessions Judge, Sangamner, District Ahmednagar, in Criminal Revision No.35 of 2006. The facts leading to the filing of the revision application can be stated as under: 5. One Kisan s/o Baban Kawade lodged the complaint with Sangamner Taluka Police Station on 19th April, 2000, informing them that his nephew Yadav and others were assaulted by the petitioners No.1 to 4 by means of sticks, axes etc. The police registered offence vide Crime No.72 of 2000, under Sections 324, 323, 504, 506 read with Section 34 of the Indian Penal Code against the petitioners No.1 to 4. It seems, the respondent No.2 and the other two injured persons were then referred to the medical officer for treatment and medical certificates. The police collected medical certificates. The medical certificates show that all the three victims had sustained simple injuries on their head. The medical certificates also show that the injuries were caused by hard and sharp object. Before the police could file the charge-sheet against the petitioners No.1 to 4, the respondent No.2 Yadav, the nephew of complainant Kisan, lodged a private complaint before the learned JMFC, Sangamner, and in addition to the petitioners No.1 to 4, also arrayed the petitioners Nos.5 and 6 as accused. He alleged, that on 19th April, 2000, the petitioners assaulted him by means of axes, sticks, iron rods, stones etc. He also alleged that when his two witnesses tried to intervene, they too were assaulted by the petitioners and they too sustained injuries on their heads. The respondent No.2 further stated in the complaint that two more witnesses rushed to the spot, and then, took him and the other two injured persons, to the hospital. The respondent No.2 asserted that the petitioners intended to kill him and his witnesses. He also asserted that the offence under section 307 IPC of attempt to commit murder and the offence under Section 326 IPC of causing grievous hurt with deadly weapon, were also committed by the petitioners. The respondent No.2 asserted that the petitioners intended to kill him and his witnesses. He also asserted that the offence under section 307 IPC of attempt to commit murder and the offence under Section 326 IPC of causing grievous hurt with deadly weapon, were also committed by the petitioners. Unfortunately, the learned Magistrate did not proceed with the complaint immediately. It seems, he recorded verified statement of the respondent No.2 and probably waited for the respondent No.2 to adduce further evidence. It seems, the complaint case remained pending for quite some time. 6. In the mean time, the police sent charge-sheet against the petitioners No.1 to 4 pursuant to the CR No.72 of 2000. They alleged that the petitioners No.1 to 4 had committed an offence under Sections 324, 323, 504, 506 read with Section 34 of the Indian Penal Code. Even after sending of the charge-sheet, the criminal case RTC No.180 of 2000 remained pending for years together. Ultimately, on 8th December, 2005, the respondent No.2 produced two witnesses before the learned Magistrate and recorded their depositions. He also produced before the learned Magistrate three medical certificates. 7. The respondent No.1's witness No.1 Sudam, who had sustained injury, stated on oath, before the learned Magistrate that, on that day, the petitioners No.1 to 7 were abusing and threatening the respondent No.2. He was with one Kisan, and he said, he and Kisan tried to intervene and pacify the parties. He said, the petitioners No.2 to 7 instigated the petitioner No.1 to assault the respondent No.2. The petitioner No.1, thereupon, asserted that he is a criminal from Mumbai and would not hesitate to commit murder. Having said that, the petitioners assaulted the respondent No.1, and when he tried to intervene, they also assaulted him with iron rods, sticks, axe and stone etc. He said, even Kisan sustained injuries during the melee. He said all three of them fell down in injured condition. He said, the petitioners had intention to kill them. 8. The second witness Sahebrao, stated on oath that on that day, while he was walking by the road, he saw, the petitioners No.1 to 4 were having sticks and iron rods in their hands. He said, he saw, the respondent No.2 had sustained injury on his head and blood was oozing from it. He said, he helped the respondent No.2 by sprinkling water on his face. He said, he saw, the respondent No.2 had sustained injury on his head and blood was oozing from it. He said, he helped the respondent No.2 by sprinkling water on his face. He said, the respondent No.2 still did not move and so, he said, he brought the respondent No.2 to the hospital. He said, other two witnesses Sudam and Kisan were also present on the spot. He said, both Sudam and Kisan had also sustained injuries on their face and head. He said, these injured persons were also brought to the hospital. He said, at the time of incident, the petitioner No.1 threatened the respondent No.2 that he would kill him and his brother. 9. The injury certificates, that are brought on record, before the learned Magistrate, as said above, show incised injury on parietal region of all the three injured. These injuries were found to have size of 5 x 1 cm, 2 x 2 cm and 4 x 1 cm. The Medical Officer certified that despite x-ray, nothing was found abnormal. On the face of it, the injuries sustained by these three victims, were simple in nature. 10. On the basis of material that was brought before the learned Magistrate, one may not even imagine that it is a fit case to issue process under Section 307 of the Indian Penal Code. It is neither a case under Section 326 of the Indian Penal Code. All that the learned Magistrate could have done at such situation, was issuance of process, against the petitioners, under Sections 325, 324, 323, 504, 506 read with Section 34 of the Indian Penal Code. Instead of examining and scrutinizing the evidence on record, it seems, the learned Magistrate blindly passed the order and issued process under Sections 307, 326, 325, 324, 504, 506 read with Section 34 of the Indian Penal Code against the petitioners. The petitioners rightly felt aggrieved and went before the revisional Court. 11. The procedure required to be followed in such situation is mentioned in Section 200 and 202 of Code of Criminal Procedure. The sections are quoted below : "200. The petitioners rightly felt aggrieved and went before the revisional Court. 11. The procedure required to be followed in such situation is mentioned in Section 200 and 202 of Code of Criminal Procedure. The sections are quoted below : "200. Examination of complainant - A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, - (a) if a public servant acting or purporting to Act in the discharge of his official duties of a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 : Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not reexamine them." "202. Postponement of issue of process, - (1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a Police Officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding; Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions ; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 202. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a Police Officer, he shall have for that investigation all the powers conferred by this Code on an officer in-charge of a police station except the power to arrest without warrant." 12. The learned Judge of the revisional Court mentioned in his Judgment, and I quote, "while issuing the process, it is to be seen, whether the allegations taken of their face value, prima facie spell out ingredients of the offences which are alleged to have been committed." He said further that by applying this yardstick impugned order of issue of process could not be said to be erroneous. I think, this conclusion of the learned Judge is patently erroneous. I purposely gave details of the allegations made by the respondent No.2 and his witnesses in their statements before the learned Magistrate, to find out, whether on its face value, they spell out ingredients of offences punishable under Section 307 and 326 of the Indian Penal Code. I am aware and the learned Advocate appearing for the respondent No.2 brought to my notice, that there is clear mention about wielding of dangerous weapons like axe, sticks, iron rods and stones, made by the prosecution witnesses. But, I think, what is more important is the gravity of the injuries. If the injuries are found to be simple, it cannot be said and the common sense would tell us, that despite of having dangerous and heavy weapons in their hands, if the victim sustained simple injuries, there could not have been intention to commit murder of the victim. The nature of the injuries would also decide, as to whether the offence under Section 326 IPC is prima facie seen. 13. In view of the above discussion, the Writ Petition deserves to be partly allowed. However, before concluding this Judgment, I must record that, in this case, the police had already filed the charge-sheet, which is now RTC No.180 of 2000. 13. In view of the above discussion, the Writ Petition deserves to be partly allowed. However, before concluding this Judgment, I must record that, in this case, the police had already filed the charge-sheet, which is now RTC No.180 of 2000. In view of the private complaint and in view of my above mentioned conclusion that there is sufficient ground to proceed against the petitioners for the offences punishable under Sections 325, 324, 323, 504, 506 read with Section 34 of the Indian Penal Code. The private case would stand on equal footing as that of the police case, as per sub-section (2) of Section 210 of Code of Criminal procedure and both these cases would be tried together. The learned Magistrate shall try both these cases together as per the provisions of Section 210 of Code of Criminal Procedure. The Writ Petition is thus partly allowed. The issuance of process against the petitioners for the offences punishable under Sections 307, 326 read with Section 34 of the Indian Penal Code is quashed and set aside. Rule made partly absolute.