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2015 DIGILAW 11 (BOM)

Deva v. State of Maharashtra

2015-01-05

S.B.SHUKRE

body2015
JUDGMENT : S.B. Shukre, J. 1. Heard. Admit. 2. Heard finally by consent. 3. By this application, filed under Section 482 of the Criminal Procedure Code, what has been effectively sought is quashing and setting aside of the order passed by the Court of Judicial Magistrate, First Class and also 2nd Additional Sessions Judge, Nagpur in dismissing the application of the applicant seeking his discharge from the criminal prosecution launched against him. 4. The applicant along with 15 other accused is facing prosecution for the offences punishable under Sections 143 and 500 of the Indian Penal Code read with Section 135 of the Bombay Police Act and also Section 11(1)(E) of the Prevention of Cruelty to Animals Act. It appears that the applicant had moved an application before the Court of Judicial Magistrate, First Class, Nagpur seeking his discharge from the case on the ground that his name does not figure anywhere in the First Information Report or in the charge sheet or in the statements of any of the witnesses recorded by the Investigating Officer inasmuch as there is absolutely no prosecutable material collected by the Investigating Officer against him. This application, however, was rejected by the learned Magistrate on the ground that the criminal case filed against the applicant and others being triable by summons procedure, the procedure applicable to a warrant case would not govern the prosecution and in a case triable by summons procedure there was no provision for discharging the accused. The revision application filed against the said order also came to be dismissed by the learned 2nd Additional Sessions Judge, Nagpur on 24.7.2014 upholding the grounds taken by the learned Magistrate for dismissing the discharge application. Left with no other alternative, the applicant has preferred the present application under Section 482 of the Cr.P.C. seeking quashing of the F.I.R. 5. Initially the application was listed before the Division Bench. However, it was observed by the Division Bench of this Court that this application challenges the order passed by the learned trial Judge dismissing the application for discharge and the order passed by the learned Additional Sessions Judge dismissing the revision and, therefore, the application would lie before the Single Judge of this Court, as per the order passed on 15th November, 2014. This is how this application has been listed before this Court and heard accordingly. 6. This is how this application has been listed before this Court and heard accordingly. 6. There is no dispute about the fact that the only ground on which discharge application of the applicant was rejected by the learned Magistrate was that the case against him was a summons case and the relevant provisions under Chapter XX of the Code of Criminal Procedure prescribing the procedure for trial of summons cases did not provide for discharge of the applicant, except for allowing stopping of the proceedings under Section258. There is also no dispute about the fact that on this very ground, the revision application filed against the order dismissing the discharge application by the Court of Judicial Magistrate First Class, came to be rejected by the 2nd Additional Sessions Judge, Nagpur by his order passed on 24.7.2014 in Criminal Revision Application No. 130/2014. There is also no dispute about the fact that the name of the applicant does not appear anywhere in the F.I.R. or in the charge sheet or in the statements of the witnesses. There is thus absolutely no material present in the charge sheet incriminating against the applicant in any manner in this case. Therefore, compelling the applicant to face the ordeal of a trial in a case where there is absolutely no material available on record incriminating him for the offences alleged against him only on the ground that there is no provision in Chapter XX of the Code of Criminal Procedure for discharging the accused would be nothing but travesty of justice. In fact, the provision of Section 258 of the Criminal Procedure Code could have been very well resorted to by the trial Court or at least by the Sessions Court, by stopping the proceedings and discharging or acquitting the accused applicant, as the case may be. If this cannot be a fit case for resorting the provision of Section 258 of the Criminal Procedure Code in the opinion of learned Additional Sessions Judge, I do not think that there could be any other case which could be considered to be fitter than the present one for stopping of the proceedings and discharging the applicant accused in this case. 7. 7. In the circumstances, I am of the view that this is a fit case for quashing of the proceedings against the applicant initiated on the basis of the F.I.R. in Crime No. 237/2010 dated 21.8.2010 and the charge sheet filed in Criminal Case No. 16318/2010. 8. The application is, therefore, allowed. 9. The order passed by the learned Judicial Magistrate First Class, Nagpur dated 22.4.2014 in Criminal Case No. 16318/2010 and also the order dated 24.7.2014 passed by the 2nd Additional Sessions Judge, Nagpur in Criminal Revision Application No. 130/2014 are hereby quashed and set aside and consequently the proceedings of the Criminal Case No. 16318/2010 pending on the file of the Judicial Magistrate, First Class, Evening Court No. 7, Nagpur as against the present applicant, are also quashed and set aside. The applicant-accused stands discharged.