High Court
Facts
( 1 ) 21 cri appln 1087.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 1087 OF 20241.Girdharilal s/o Lekhraj TanwaniAge 57 years, Occ: Business.R/o Plot No.107, Sindhi Colony,Jalna Road, Aurangabad2.Rajesh s/o Lakshmandas ParaswaniAge 55 years, Occ. Business,R/o Plot No. 122-B, Sindhi Colony,Jalna Road, Aurangabad3.Rohit s/o Gulshan ChopdaAge 48 years, Occ. Engineer,R/o 43, Deepnagar, Near Shahnoorwadi,Aurangabad.4.Pradip s/o Mulchand JainAge 54 years, Occ. Business,R/o Khara Kuwa, Pandhari, Bhandi Bazaar,Aurangabad....APPLICANTSV/s.1.Bhima s/o Narayan Gunjal,Age 42 years, Occ: Private Service,R/o c/o Hotel Smile Stone, Kamargaon,Ahmednagar Pune Highway,Dist. Ahmednagar.2.The State of Maharashtra...RESPONDENTS.....Mr. Jagiasi Dinesh S., Advocate for the ApplicantsMr. N.D. Batule, APP for the Respondent-StateMr. P.P. Kothari, Advocate for the Respondent No.1..…
Legal Reasoning
( 9 ) 21 cri appln 1087.2416.It is also not in dispute that the present Respondent No.1 lodged areport with Taluka Police Station and reported incident occurred on24.02.2019 but the Police registered said report as non-cognizable. Therefore,the Respondent No.1 filed a private complaint and prayed for necessary actionagainst the present Applicants. It is apparent on face of record that soon afterthe incident, the present Respondent (accused no.1 in Crime No.0088/2019)was absconding but subsequently he was arrested and enlarged on bail.17. On 14.05.2019, the learned Judicial Magistrate passed an orderbelow Exh.1 in SCC No.3314/2019 and placed the complaint for verification.On 05.09.2019, the learned Magistrate examined the RespondentNo.1/Complainant - Bhima Gunjal and another witness Pawan Nikam on14.11.2019. On 22.10.2019, the learned Judicial Magistrate passed thefollowing order:“Perused the complaint. Verification & documents. Heard. Material onrecord prima facie shows commission of offence punishable under Section323, 504, 506 read with Section 34 of the I.P.C. There are sufficient groundsto proceed against accused persons. Hence, issue process against accusednos.1 to 4 for the offence punishable u/s. 323, 504, 506 r/w Section 34 of theIPC.” 18.Needles to say that there is no specific formula for conductinginquiry other than the trial as contemplated under Section 202 of the Cr.P.C. Inthe case in hand, initially, the learned Judicial Magistrate called upon the ( 10 ) 21 cri appln 1087.24complainant for verification as contemplated under Section 200 of the Cr.P.C.Since the Applicants are residing outside the jurisdiction of the learnedMagistrate, therefore, the learned Judicial Magistrate himself examined twowitnesses under Section 202 of the Cr.PC., and after satisfaction andapplication of mind, issued the process as against the present Applicants for theoffence punishable under Section 323, 504, 506 read with Section 34 of theI.P.C.19.No doubt, the learned trial Court recorded statements of theComplainant and one more witness under Section 200 of the Cr.P.C. and thensatisfied about committing the alleged offence at the hands of the Applicants/Accused. Since, the learned Judicial Magistrate himself recorded statements ofthe Complainant and another witness, thereafter formed an opinion aboutexistence of grounds to proceed with the complaint against the Applicants forthe alleged offences and issued process. Therefore, impugned order does notappear to be illegal, bad in law.20.It is submitted that after considering the allegations made in theFIR lodged by the present Applicant No.1 as well as the averments made by theRespondent No.1 in his complaint, it prima facie appears counterblast againsteach other. The disputed question of facts cannot be adjudicated withoutsubstantial evidence. Therefore, I do not find that it is a proper case to quash
Arguments
( 2 ) 21 cri appln 1087.24CORAM : Y.G. KHOBRAGADE, J.DATE :09.12.2024ORAL JUDGMENT:-1.Rule. Rule made returnable forthwith. With the consent of boththe sides heard finally at the admission.2.Heard at length advocate Mr. Jagiasi the learned counselappearing for the Applicants, Mr. Kothari the learned counsel appearing for theNon-Applicant No.1 and the learned APP for the Non-Applicant No.2.3.By the present application under Section 482 of the Cr.P.C., theApplicants have prayed for quashing of the complaint bearing SCCNo.3314/2019 pending before the learned 4th Jt. JMFC, Court No.4,Ahmednagar, for the offences punishable under Section 323, 504, 506 readwith Section 34 of the I.P.C..4.In nutshell facts giving rise to this application are that on24.02.2019 at about 19.31 hours, during hospitalization and the oral report ofthe Applicant recorded by the Police personnel attached with Taluka PoliceStation, Ahmednagar. As per version of oral Report, on 24.02.2019 at about8.00 a.m., the present Applicant No.1 with his friends was proceeding towardsMumbai by Innova vehicle No.MH-20-DJ-7608. At about 11.30 am., said Carwas stopped in parking area of Hotel Smile Stone situated on Ahmednagar- ( 3 ) 21 cri appln 1087.24Pune-Mumbai Highway. After the car was parked, he and his friends visitedthe Hotel Smile Stone for breakfast. Thereafter, when he and his some friendswere proceeding towards the tea stall situated nearby parking area. At thattime the Watchman asked him to take away his Car from the parking area buthe told the Watchman that his other friends are taking breakfast in said Hotel.However, the Watchman abused him in filthy language and assaulted him withwooden log. Further, when his friends Rohit Chopda and Pradip Jainintervened, the Watchman also assaulted his friends with the wooden logs.Therefore, he and his friends sustained grievous injuries and hospitalized inShreedeep Hospital, Ahmednagar. The Complainant further alleged that duringcourse of assault, he lost gold chain weighing 10 gram. On the basis of oralreport, Crime No.0088/2019 was registered against the accused persons i.e. 1)Bhima Narayan Gunjal, 2) Pawras Madhav Saswade, 3) Manager Deshmukh, 4)Manager Arora and 12 to 13 unknown persons for the offence punishableunder Section 325, 326, 143, 147, 148, 149, 109, 427 of the I.P.C. read withSection 37 and 135 of the Maharashtra Police Act (Bombay Police Act).5.The learned counsel appearing for the Applicants canvassed thatthe informant Shri Bhima Gunjal is the accused no.1 in Crime No.0088/2019registered an oral report of the Applicant. Shri Bhima Gunjal lodged a privatecomplaint bearing SCC No.3314/2019 against the present Applicants for theoffence punishable under Section 323, 504, 506 read with Section 34 of the ( 4 ) 21 cri appln 1087.24I.P.C., on the ground that though he lodged a report with the concerned PoliceStation and reported the incident occurred on 24.02.2019 at about 11.30 hoursbut the Police has not registered FIR but only registered NCR. Therefore, hefiled a complaint and prayed for action against the accused persons/ Applicantsfor the above offences.6.The learned counsel appearing for the Applicants submits that theComplainant has instituted SCC No.3314/2019 after lapse of 72 days from thedate of the incident. Though the complainant produced Medical Certificate butit does not appear that the Complainant was admitted due to any injury.Further, nature of injuries described in Injury Certificate are of simple nature.Per contra, the present Applicant No.1 – Girdharilal Tanwani/Informant washospitalized at Shreedeep Hospital, Ahmednagar in unconscious state and soonafter he regained consciousness his statement was recorded by the Police.Therefore, lodging of the complaint by the Respondent/Complainant after lapseof 72 days is an afterthought and no prima facie case is made out as against thepresent Applicant/original accused.7.It is further canvassed that Section 202 of the Cr.P.C., mandatorilyprovides that the Judicial Officer requires to make an inquiry through theconcerned Police Station or himself, if the accused are residing beyond thejurisdiction of the concerned Magistrate. The present Applicants are residing at ( 5 ) 21 cri appln 1087.24Aurangabad i.e. beyond the jurisdiction of the learned Magistrate. The learnedMagistrate did not call report from the concerned Police Station. However, theMagistrate only recorded statements under Section 200 of the Cr.P.C., andissued process under Section 202 Cri. P. C., Therefore, issuance of process aswell as pending proceeding before the learned JMFC, Ahmednagar isunwarranted, hence, prayed to quash and set aside the same.8.In support of these submissions, the learned counsel for theApplicants relied on Judgment dated 23.02.2024 passed by the Hon’bleSupreme Court in Criminal Appeal No.776/2024 (Shiv Jatia V/s. Gian ChandMalick & Ors.), wherein it has been held that, the requirement of postponingthe issue of the process was introduced on 23.06.2006 which is applicable onlywhen one of the accused stays outside the jurisdiction of the Court. The saidrequirement is held to be mandatory.9.The learned counsel appearing for the Applicants further relied onJudgment dated 02.02.2024 passed by the Hon’ble Bench of Calcutta HighCourt in CRR No.2188/2016 with CRAN No.10/2022 (Aloka Gooptu V/s. TheState of West Bengal and Ors.), wherein, it has been held that the complianceof provisions of Section 202 of the Cr.P.C. is mandatory, in case the allegedoffender resides outside the territorial jurisdiction of the Magistrate. ( 6 ) 21 cri appln 1087.2410.Per contra, the learned counsel appearing for the Respondent/Complainant canvassed that alleged the incident occurred on 24.02.2019 atabout 11.30 hours. The Respondent No.1/Complainant was apprehended andsubsequently he has been released on bail. Thereafter, the RespondentNo.1/Complainant filed a private complaint. Since the Applicants/originalaccused are residing outside the jurisdiction of JMFC, Ahmednagar, therefore,the learned Magistrate himself conducted an inquiry under Section 202 of theCr.P.C. and examined two witnesses Pawan Viswasrao Nikam and theComplainant himself. Thereafter, on satisfaction and on application of mind,the learned Judicial Magistrate passed an order and issued process as againstthe Applicant on 22.10.2019. After service of summons, the Applicants/accused appeared in the matter. Therefore, there is compliance of Section 202of the Cr.P.C.11.It is further canvassed that arising out of same incident dated24.02.2019, FIR No.0088/2019 was registered against the present Respondentfor the offences punishable under Section 325, 326, 143, 147, 148, 149, 109,427 of the I.P.C. read with Section 37 and 135 of the Maharashtra Police Act(Bombay Police Act) and trial of crime is pending before the same JudicialMagistrate. Therefore, prayed to decide both the complaints i.e. privatecomplaint as well as trial of Crime No.0088/2019 together. ( 7 ) 21 cri appln 1087.2412.To buttress these submissions, the learned counsel appearing forthe Respondent relied on the case of Bansilal S. Kabra V/s. Global TradeFinance Ltd. and Ors.; 2024 ALL MR (Cri.) 1643, wherein it has been held thatbefore the Magistrate acts on the complaint by issuing process against thepersons named as an accused therein, he shall satisfy himself about theexistence of sufficient grounds for proceeding against him, particularly when heis residing outside his jurisdiction. The amendment to the provisions is aimedto prevent innocent persons residing at far places, from harassment ofunscrupulous persons, filing unfounded and false complaints.13.It further relied on the case of Vijay Dhanuka and Ors. V/s. NajimaMamtaz and Ors; 2014 (2) ALL MR (Cri.) 1924, wherein the Hon’ble ApexCourt considered Section 202 of the Cr.P.C. as well as the amended Act 2005and held in para 13 and 14 as under:“13.In view of our answer to the aforesaid question, the next question whichfalls for our determination is whether the learned Magistrate before issuingsummons has held the inquiry as mandated under Section 202 of the Code. Theword “inquiry” has been defined under Section 2(g) of the Code, the same readsas follows:“2. xxx (g)”inquiry” means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;xxx 14.It is evident from the aforesaid provision, every inquiry other than a trialconducted by the Magistrate or Court is an inquiry. No specific mode or mannerof inquiry is provided under Section 202 of the Code. In the inquiry envisagedunder Section 202 of the Code, the witnesses are examined whereas under ( 8 ) 21 cri appln 1087.24Section 200 of the Code, examination of the complainant only is necessary withthe option of examining the witnesses present, if any. This exercise by theMagistrate, for the purpose of deciding whether or not there is sufficient groundfor proceeding against the accused, is nothing but an inquiry envisaged underSection 202 of the Code. In the present case, as we have stated earlier, theMagistrate has examined the complainant on solemn affirmation and the twowitnesses and only thereafter he had directed for issuance of process.”14.Reverting back to the present case it is an undisputed fact that theApplicants have prayed for quashing of complaint bearing SCC No.3314/2019filed by the Respondent No.1 against the present Applicants for the offencepunishable under Section 323, 504, 506 read with Section 34 of the I.P.C.15.In the case in hand, legal question arises is that; whether thelearned Magistrate complied with the mandatory provisions of Section 202 ofthe Cr.P.C. prior to issuance of process against the present Applicants who areresiding beyond the jurisdiction of the learned Magistrate. Indeed, theApplicants are residing at Aurangabad, which is beyond the Judicial Magistrate,Ahmednagar. It is undisputed that offence allegedly committed within thejurisdiction of JMFC, Ahmednagar on 24.02.2019 at about 11.30 a.m. It is alsonot in dispute that the present Applicant No.1 lodged a report with TahsilPolice Station, Ahmednagar regarding incident occurred on 24.02.2019 inparking place of Hotel Smile Stone.
Decision
( 11 ) 21 cri appln 1087.24and set aside the order of issuance of process as well as the quashment of theproceeding, hence, the Petition is dismissed. 21.Accordingly, the Rule is discharged. [Y.G. KHOBRAGADE, J.]mub