High Court
Legal Reasoning
922WP1099-24.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD 922 CRIMINAL WRIT PETITION NO. 1099 OF 2024 X.Y.Z. … PetitionerVersus1) The State of MaharashtraThrough its PrincipalSecretary of Home Department,Mantralay, Mumbai2) The Deputy Superintendent of Police,Sub-Division Officer, AmalnerDist. Jalgaon3) The Police Inspector,Police Station, Parola,Tq. Parola Dist. Jalgaon … Respondents...Mr. Milind B. Sandanshiv, Advocate for PetitionerMr. K. K. Naik, APP for Respondent-StateCORAM: Y. G. KHOBRAGADE, J.DATE:03.01.2025PER COURT :- 1.Heard Mr. Milind B. Sandanshiv, the learned counselappearing for the Petitioner and Mr. K. K. Naik, the learned APPfor the State.2.The learned counsel appearing for the Petitionercanvassed that on 10.11.2020, the Petitioner lodged a F.I.R., 1 of 9 (( 2 ))922WP1099-24alleging that his niece/ victim was studying in B.A. 2nd year at Parola.On 03.10.2020, his niece and nephew visited at his house. On07.11.2020 at about 11 a.m., he left for market and his wife, nephewand niece (victim) were present at his house. But when he returnedhome at about 3 p.m., he did not notice presence of his niece/victim.On inquiry, he came to know that at about 2.30 p.m., his niece/victimleft his house for bringing some medicine, but she did not return tillevening. Though he and his family members took search of thevictim but she was not traceable. Therefore, on 08.11.2020, amissing report No. 49 of 2020 was lodged with Parola Police Station. 3.On 08.11.2020, at about 5.30 p.m., the Petitioner cameto know that one unknown female has consumed some poisonoussubstance and is admitted in Primary Health Centre, Parola.Therefore, he visited Primary Health Centre, Parola and confirmedabout hospitalization of his niece. Thereafter, he passed informationto his sister Sushilabai (Mother of victim) and other relatives. It is thecontention of the Petitioner that the Medical Officer attached with thePrimary Health Centre, Parola asked him to take the victim for furthermedical treatment at Civil Hospital, Dhule because the victim was incritical condition. Therefore, the victim was taken in ambulance at 2 of 9 (( 3 ))922WP1099-24Civil Hospital, Dhule, however, in midway, the victim regainedconsciousness near Phagne village and was trying to say something.It is further contended that, when he enquired with the victim, shedisclosed that, “she was knowing one Shivnandan Shalik Pawar whotried to convince her for friendship, but she declined said proposal offriendship and she was not giving attention and the accused personsnamely (1) Shivnandan Shalik Pawar (2) Pappu Ashok Patil (3)Ashok Walji Patil committed rape on her”. 4.The Petitioner further contended that when the victimwas hospitalised, he, his sister Sushilabai and his elder niece Harshalicame to know that above three Accused persons kidnapped the victimfrom village Parola and they gave her soporific medicine and underthe unconscious state accused have committed rape on the victim andwhen the victim resisted the accused persons and one unknownfemale abused her on her caste and assaulted her with fist and blowsdue to which the victim sustained bodily injuries. The Victimsuccumbed to injuries on 09.11.2020 while hospitalisation.5.The learned counsel appearing for the Petitionercanvassed in vehemence that the complainant specifically namedthree accused persons in F.I.R., however, the Investigating Officer has 3 of 9 (( 4 ))922WP1099-24filed a charge-sheet against only one accused Shivnandan ShalikPawar, but failed to file charge-sheet as against remaining threeaccused persons including Pappu Ashok Patil, Ashok Walji Patil andunknown female accused. 6.The learned counsel for the Petitioner invited myattention to the post mortem report wherein the Medical Officeropined about finding signs of raising forceful penetration of vagina ofvictim. The injury certificate issued by the General Hospital, Dhuleappears about sexual assault against the victim. Therefore, theInvestigating Officer could have filed a charge-sheet against the othertwo accused i.e., Pappu Ashok Patil, Ashok Walji Patil and oneunknown lady Ratnabai Gokul Patil. 7.It is further canvassed that the Investigating Officer hasfiled a charge-sheet against only one accused person- ShivnandanShalik Pawar but failed to file charge-sheet against other threeaccused persons i.e., (1) Shailesh @ Pappu (2) Ashok @ Bhura and(3) Smt. Ratnabai Gokul Patil, though they are involved whilecommitting crime as per the disclosure statement made by the victimto the Petitioner/informant and Smt. Sushilabai, (The mother ofvictim) while shifting the victim to the Civil Hospital Dhule. 4 of 9 (( 5 ))922WP1099-24Therefore, the Petitioner filed Exh.91 application and prayed forissuance of direction against the Investigating Officer to file chargesheet as against three accused persons whose names are disclosed inthe F.I.R.. However, on 01.01.2024, the learned Trial Court passed theimpugned order and rejected the application because the Applicationhas been moved after a lapse of 3 years after examination of 18witnesses, which is illegal bad in law and hence, prayed for quashingand setting aside the same. 8.The learned counsel appearing for the Petitioner placedreliance on the case of Bhagwant Singh V/S Commissioner of policeand others, (1985) 2 SCC 537, wherein it has been held that, in acase where the Magistrate to whom a report is forwarded underSection 173(2)(i) decides not to take cognizance of the offence and todrop proceedings or takes the view that there is no sufficient groundfor proceeding against some of the persons mentioned in the FirstInformation Report, the Magistrate must give notice to the informantand provide him an opportunity to be heard at the time ofconsideration of the report. Unnecessary delay on account of thedifficulty of effecting service of the notice on the informant cannot bea valid objection against this view because in any case, the action 5 of 9 (( 6 ))922WP1099-24taken by the police on the First Information Report has to becommunicated to the informant and a copy of the report has to betitled to him under Section 173(2)(i). 9. It is further relied on the case of Dhrup Singh V. State of Bihar,(2013) 4 SCCC 275, wherein the Hon’ble Supreme Court observed asunder:“The question was arose whether the Chief Judicial Magistrate was right in issuing the summons to the Petitioners who were named in the F.I,R, but not in the charge-sheet? Under these circumstances, the Hon’ble Supreme Court considered the scope of Section 319 of the Criminal Procedure Code and held that even if the Investigation Agency is of the view that no case has been made out against the accused the Magistrate can apply his mind independently to the materials contained in the police report and take cognizance there upon.”10.In the case in hand, it prima facie appears that after dueinvestigation, the Investigating Officer has filed the charge-sheet asagainst the accused- Shivnandan Shalik Pawar. After framing ofcharge against the accused, the prosecution examined total 18witnesses. The prosecution evidence does not reveal aboutinvolvement of other accused persons while committing the crime.The Investigating Officer recorded statements of witnesses underSection 161 of the Code of Criminal Procedure. but none of the 6 of 9 (( 7 ))922WP1099-24witnesses disclosed names of other three accused persons whosenames have been disclosed in the F.I.R.11.Needless to say that the statements of informant(Petitioner) and Sushilabai (Mother of the victim) was recordedunder Section 161 of the Criminal Procedure Code. As per thestatements of both these witnesses, the Victim made disclosurestatement in midway while being shifted from Primary Health Centre,Parola to Civil Hospital Dhule. On perusal of statements of witnesses,i.e. Police Constable who was attached with Primary Health Centreand Civil Hospital, the victim was constantly unconscious. Thestatement of the Medical Officer attached with Primary HealthCentre, Parola appears that when the victim was hospitalised at thattime she was in unconscious state. So also, the victim was admitted inCivil Hospital, Dhule in unconscious state. However, the Petitionerand Mother of the victim claimed that when the ambulance reachednear village Phagne, the victim regained consciousness and disclosedabout rape being committed on her by accused 1) Shivnandan ShalikPawar (2) Pappu Ashok Patil (3) Ashok Walji Patil.12.However, as per the statement of the informant andvictim’s mother, the Medical Officer was accompanying in the 7 of 9 (( 8 ))922WP1099-24ambulance and was sitting besides driver’s seat but the informant andvictim’s mother did not disclose the fact of victim regainingconsciousness to the Medical Officer. The statement of MedicalOfficer does not suggest that the victim made any declaration to theinformant and Sushilabai. Irrespective of the above, the prosecutionexamined 18 witnesses and some other witnesses remained to beexamined. The prosecution is yet to prove Chemical Analysis Report.13.Section 319 of the Criminal Procedure Code empowersthe Court to proceed against other persons appearing to be guilty ofoffence other than the accused against whom the charge-sheet hasbeen filed. In the case of Dhrup Singh cited (supra) the Hon’bleSupreme Court considered the cases of (1) Hardeep Singh V. State ofPunjab, (2009) 16 SCC 785, (2) Mohd. Shafi V. Mohd. Rafiq, (2007)14 SCC 544, (3) Rakesh V. State of Haryana, (2001) 6 SCC 248, (4)Uma Shankar Singh V. State of Bihar, (2010) 9 SCC 479 and held thateven if the Investigation Authority is of the view that no case has beenmade out against the accused, the Magistrate can apply his mindindependently to the materials contained in the Police report and takecognizance there-upon. 8 of 9
Decision
(( 9 ))922WP1099-2414.Therefore, considering the scope of Section 319, if theprosecution brings substantial evidence to show about involvement ofother accused whose names have been disclosed in the F.I.R., they canbe prosecuted by taking aid of Section 319 of the Criminal ProcedureCode. Therefore, I do not find any merit in the present Writ Petition,hence, the Writ Petition is dismissed. [ Y. G. KHOBRAGADE, J. ] HRJadhav 9 of 9