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2021 DIGILAW 1298 (BOM)

Jija Eknathrao Ghurde v. State of Maharashtra

2021-10-04

AMIT B.BORKAR, V.M.DESHPANDE

body2021
JUDGMENT V.M. Deshpande, J. - RULE. Rule is made returnable forthwith. Heard finally by consent of the parties. 2. Heard Mr. R.L. Khapre, learned Senior Advocate for the applicant in this application, Shri V.A. Thakre, learned Additional Public Prosecutor for the non-applicant / State and Mr. R.R. Vyas, learned Advocate for the non-applicants No.2 to 7 in this application. 3. This application is filed for recalling of judgment and order of the Court in Criminal Application (APL) No. 789/2017 dated 04/04/2018 by praying that this Court should exercise its inherent powers under Section 482 of the Code of Criminal Procedure. 4. By judgment dated 04/04/2018, the Co-ordinate Bench of this Court allowed Criminal Application (APL) No. 789/2017 filed on behalf of the present non-applicants No.2 to 7 and thereby quashed the First Information Report bearing No. 239/2017 registered with Police Station Murtizapur (City), District Akola for offence under Section 306 read with Section 34 of the Indian Penal Code. 5. Few facts will be necessary for deciding this application. Present applicant is the widow of Eknathrao Ghurde, who committed suicide by hanging himself under bridge. The applicant herein lodged a report that deceased was abated by the acts on the part of the non-applicants No.2 to 7 herein. In the First Information Report she did state that a suicide note was left behind by the deceased. After the crime was registered against the non-applicants No.2 to 7 they approached before this Court, challenging the registration of First Information Report against them. They approached before this Court by invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. The proceedings initiated by them were registered as Criminal Application (APL) No. 789/2017. It would be useful to reproduce herein-under the prayer clauses made by the non-applicants No.2 to 7 in the application and those are reproduced below : i. Call for the record of FIR No. 239/2017 dated 19/07/2017 registered with non-applicant No.1, Murtizapur City, Police Station, for commission of offences punishable under section 306, 34 of Indian Penal Code. ii. Upon perusal of same, quash and set aside FIR No. 239/2017 dated 19/07/2017 registered with non-applicant No.1, Murtizapur City, Police Station, for commission of offences punishable under section 306, 34 of Indian Penal Code, on such terms and conditions and in the interest of justice. iii. ii. Upon perusal of same, quash and set aside FIR No. 239/2017 dated 19/07/2017 registered with non-applicant No.1, Murtizapur City, Police Station, for commission of offences punishable under section 306, 34 of Indian Penal Code, on such terms and conditions and in the interest of justice. iii. During pendency of instant application, stay the investigation of FIR No. 239/2017 dated 19/07/2017 registered with non-applicant No.1, Murtizapur City, Police Station, for commission of offences punishable under section 306, 34 of Indian Penal Code. iv. Grand ad-interim relief in terms of prayer clause (iii) above. v. Grand any other relief which this Hon’ble Court deems fit and proper in the circumstances of the case. vi. Allow the instant application. 6. Though one of the prayers was made by them to stay the investigation of FIR No.239/2017 it appears that the stay to the ongoing investigation was not granted by this Court at any point of time. 7. In view of the notices issued the present applicant appeared and she was represented by her Advocate Shri P.S. Patil. From the record it appears that the reply on behalf of the present applicant was not filed. However, the learned Additional Public Prosecutor for and on behalf of the Investigating Officer has filed a detailed reply opposing the reliefs prayed by the non-applicants No.2 to 7 for quashing of the FIR. 8. From record it appears that Criminal Application (APL) No. 789/2017 was taken up for hearing on 04/04/2018 by the co-ordinate Bench of this Court. On the same day, the non-applicants herein were represented by their Advocate. The State was also represented by the learned Additional Public Prosecutor. However, it appears that the applicant herein remained to be represented inasmuch as her Advocate Shri P.S. Patil was absent. On 04/04/2018, after hearing the Advocate for the applicant as well the learned APP, the application filed on behalf of the non-applicants No.2 to 7 herein was allowed and the FIR registered against them by the Police Station Officer Murtizapur for offence under Section 306 read with Section 34 of the Indian Penal Code was quashed and set aside. 9. The present application for recalling of the judgment dated 04/04/2018 was filed on 05/10/2018. In the application, the reasons are submitted as to why Adv. Mr. P.S. Patil could not remain present before the Court on 04/04/2018. 9. The present application for recalling of the judgment dated 04/04/2018 was filed on 05/10/2018. In the application, the reasons are submitted as to why Adv. Mr. P.S. Patil could not remain present before the Court on 04/04/2018. Not only that it was pointed out in the application that the non-applicants No.2 to 7 herein obtained the order by not disclosing the fact to this Court that during pendency of the application filed by them, the Investigating Officer has already filed charge-sheet. 10. Notices were issued on this application. While issuing notice, it was observed b y the Court that it would be open for the non-applicants No.2 to 7 to contest about the maintainability of this application also. 11. In pursuance to the notice, the non-applicants No.2 to 7 appeared before this Court and they have filed their reply also. The reply is dated 16/08/2021 though it is affirmed by one of the non-applicants, the reply is signed by all the non-applicants. 12. Perusal of the reply shows that the Investigating Officer final report was filed on 23/01/2018 in the Court of learned jurisdictional Magistrate i.e. the learned Judicial Magistrate First Class, Murtizapur. The reply also states that in view of the presentation of the final report, on 07/02/2018, the learned jurisdictional Magistrate issued summons to the present non-applicants No.2 to 7 for their appearance before the said Court. Reply also discloses that in obedience of the summons the non-applicants No.2 to 7 appeared in the Court of learned Judicial Magistrate First Class and collected the charge-sheet on 27/02/2018. Not only that on the very same day, it is stated in the reply that the learned Magistrate committed the case to the Court of Sessions. Obviously the offence punishable under Section 306 of the IPC is exclusively triable by the Court of Sessions and therefore, the learned Magistrate has passed the order of committal. The reply also states that after the committal the case was registered on the file of learned Additional Sessions Judge as Sessions Trial No.29/2018. 13. Obviously the offence punishable under Section 306 of the IPC is exclusively triable by the Court of Sessions and therefore, the learned Magistrate has passed the order of committal. The reply also states that after the committal the case was registered on the file of learned Additional Sessions Judge as Sessions Trial No.29/2018. 13. In view of this admitted position is that final report was filed in the Court of learned Judicial Magistrate First Class and also the fact that the charge-sheets were collected by the present non-applicants No.2 to 7 and the case was already committed to the Court of Sessions, that all occurred much prior to the judgment dated 04/04/2018, passed by this Court. 14. Filing of the charge-sheet, collection of the copies of the same by the non-applicants No.2 to 7 on 27/02/2018, not only postulates, but, it attributes positive knowledge to the non-applicants No.2 to 7 that the Investigating Officer on culmination of investigation which he carried in respect of FIR No.239/2017 found that he has collected sufficient evidence as appeared during the course of investigation against the present non-applicants No.2 to 7 and therefore, he submitted the charge-sheet. 15. The fact remains that the factum of filing of charge-sheet and collection of the copies for and on behalf of the non-applicants No.2 to 7 was not communicated to this Court. The learned Senior Advocate Shri R.L. Khapre, is not finding any fault to the submissions made on behalf of Shri. R.R.Vays, learned Advocate representing non-applicants No.2 to 7 that the said fact was not disclosed to him by the non-applicants No.2 to 7. We also have no reason not to accept the statement made by Shri R.R. Vyas that the non-applicants No.2 to 7 did not communicate the fact of filing of the charge-sheet to him. 16. The relief which this Court grants while exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure is a discretionary relief. Of course, the discretion has to be exercised by this Court on the sound judicial principles. It is a cardinal rule of law that a litigant who approaches to the Court and seeking equitable relief from the Court should approach the Court with clean hands. It is expected from the litigants who wish that the Court should exercise discretion in their favour should not suppress material facts from the Court. It is a cardinal rule of law that a litigant who approaches to the Court and seeking equitable relief from the Court should approach the Court with clean hands. It is expected from the litigants who wish that the Court should exercise discretion in their favour should not suppress material facts from the Court. It is different thing that on placing of material and facts before the Court, this Court may exercise or may not exercise its discretion. But surely it is not expected from the litigant to suppress material facts, which may result into exercising the discretionary relief from this Court in absence of facts though are in existence but are not brought on record. 17. The entire copy of the charge-sheet is placed along with this application by the original complainant. Perusal of the said charge-sheet would show and which is not at all disputed by the non-applicants No.2 to 7 herein that on 06/09/2017, the Investigating Officer has already sent the suicide note along with the admitted hand writing of the deceased to the hand writing expert of the State Crime Investigation Department and has sought the opinion of the hand writing expert. It is also not in dispute that as on today the report is awaited. 18. Had the fact of filing of charge-sheet was within the knowledge of Shri R.R. Vyas, we are sure that he would have stated the said aspect to the Court. 19. It would have been altogether different consideration for the Co-ordinate Bench on 04/04/2018, had the factum of filing of charge-sheet was brought to their notice. Their Lordships could have directed the present non-applicants No.2 to 7 herein either to amend the application for challenging the charge-sheet or the Court could have asked the applicant herein to withdraw the application and to file a fresh application under Section 482 of the Code of Criminal Procedure for the same. 20. We are aware of the provisions of Section 362 of the Code of Criminal Procedure, however, that bar in our view cannot come in the way in the present case because of the non-disclosure and suppression of vital facts of filing of charge-sheet, committal of the case to the Court of Sessions and still the non-applicants No.2 to 7 proceeded for praying relief for quashing of FIR. In our view, this suppression is clearly attributed to the non-applicants No.2 to 7 alone and had the said fact was not brought within the knowledge of their counsel, the counsel cannot held responsible for the same. 21. The Court has to give opportunity not only to the accused but also the complainant to place the case before the Court. In this case, even State is also not to be blamed. In view of the contents of the reply filed while opposing the application for qaushment of the FIR. 22. Primarily therefore, in view of the suppression of material facts from the Co-ordinate Bench of this Court, which affected jurisdiction of this Court, we are of the view that not only the present application for recalling the order is maintainable, but, the power under Section 362 of the Code of Criminal Procedure will also not be hurdle for the applicant / original complainant in the given set of facts. Resultantly, we pass the following order : i. The judgment dated 04/04/2018 in Criminal Application (APL) No. 789 of 2017, quashing the First Information Report No. 239/2017, registered with Murtizapur (City) Police Station, District Akola for offence punishable under Section 306 read with 34 of the Indian Penal Code is hereby recalled. ii. Criminal Application (APL) No. 789 of 2017 is restored to the file for decision on its own merits. 23. Application is allowed. Rule is made absolute in above terms.