RAMCHANDRA DIGAMBAR LOLGEVSSTATE OF MAHARASHTRA AND OTHERS Mr. Yuvraj v. Kakde
Facts
(1)wp1181.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL WRIT PETITION NO. 1181 OF 2024RAMCHANDRA DIGAMBAR LOLGEVSSTATE OF MAHARASHTRA AND OTHERS Mr. Yuvraj V. Kakde, Advocate for the petitioner Mr. S. B. Jadhav, APP for the respondent Nos. 1Mr. Yogesh Arun Jadhav, Advocate for respondent No.2Mr. A. S. Barlota, Advocate & Mr. S. K. Barlota, Advocate forrespondent No.3CORAM:KISHORE C. SANT, J.RESERVED ON:03rd JULY, 2025PRONOUNCED ON:24th JULY, 2025P. C. 1.Heard all the advocates representing respectiveparties.2.This petition is taken up for final disposal at thestage of admission with the consent of the parties.3.By way of filing this petition, the petitioners haveapproached this court challenging an order dated 05-06-20241 of 12 (2)wp1181.24passed below application below Exh.27 by the learned JMFC,Paithan in RCC NO. 154 of 2003. By way of impugned order thelearned JMFC allowed the application and directed to issuesummons to the petitioners to face trial for the offencespunishable under sections 420 and 468 read with section 34 ofthe Indian Penal Code.4.The application was filed by present respondent No.2-informant under section 319 of the Cr. P. C. praying to add thepetitioners as accused in the said trial. The informant filed anapplication stating that some material collected in investigationand placed on record is sufficient enough to summon thepresent petitioners as accused.5.It is the case of the informant that this order came tobe passed after framing of charge and after first witness was tobe examined.6.The learned advocate for the petitioners vehemently2 of 12 (3)wp1181.24argued that there is nothing on record to show even remoteconnection between the present petitioners and the offence. Theorder is passed only on assumptions and presumptions. Nospecific case is made out. He submits that order is erroneouslypassed by the learned JMFC.7.The learned advocate for the petitioners relied uponthe following judgments:a]Kailas Vs State of Rajasthan and Anr1b]Bholu Ram Vs State of Punjab and Anr2c]Sukhpal Singh Khaira Vs State of Punjab3 8.The learned advocate for respondent No.2vehemently submits that in the present case allegations leveledare of cheating and fabrication of documents. The sale deed wasexecuted on 01-08-1979 between respondent Nos. 2 and 3.Respondent No.3 is an accused. In the sale deed description ofthe property is given. So as to deceive respondent No.2, anothersale deed came to be executed between respondent No. 3 and1AIR 2008 SC 156422008 AIR SCW 625832023 (2) Mh. L. J. (Cri) 2103 of 12 (4)wp1181.24present petitioners on 12-10-2000. It is thereafter, correctiondeed is executed whereby four boundaries of the property werecorrected. On the Western side road and survey No. 178 wasshown. Same is corrected showing on Western side only SurveyNo. 178. He, thus, submits that by changing the layout,description of the property was changed and thus there ischeating. The learned advocate for the respondent thus submitsthat the learned Magistrate has rightly passed the order.9.The learned APP also submits that the learnedMagistrate has rightly passed the order. No illegality iscommitted. The learned APP also opposes the petition.10.This court has gone through the petition. Thecriminal proceedings arose out of the information given by therespondent No.2 on 26-03-2002. It is the allegations that hepurchased the property plot No. 5 from land Survey No. 178from respondent No. 3 on 01-08-1979. The layout of the saidsurvey number was approved on 26-04-1974. Respondent No. 34 of 12 (5)wp1181.24thereafter changed the layout on 20-07-1983 after purchase ofplot by the informant without consent of the informant. It isalleged that this revised layout is prepared only to grab plot no.5. The police registered the offence on the basis of statementand filed the charge-sheet. The supplementary statement ofcomplainant was also recorded on 20-05-2003. It is stated in thesupplementary statement that because of the change in layoutthe plot was still not mutated in his name in the record ofMunicipal Council. The learned court framed the charge againstrespondent No. 3 on the basis of material available on record. 11.Evidence of respondent No.2- informant wasrecorded on 03-03-2022. Application was filed on 16-03-2019on which the present order came to be passed.12.It is seen that there is civil suit pending between theparties. Respondent No. 2 has filed RCS No. 118/2003 in thecourt of Learned JMFC, Paithan with prayers of declaration thatthe informant is owner of plot No. 5, adm. 56 fts x 90 fts i.e.5 of 12 (6)wp1181.245040 sq. fts. The revised layout plan be declared as illegal, nulland void and not binding upon the informant and further prayeris made for possession of the said plot. The informant also filedspecial civil suit No. 389/2007 in the court of learned CivilJudge Senior Division, Aurangabad with the similar prayers. Thepetitioners have produced on record construction permissiondated 12-07-2002 in favour of respondent No. 2- originalaccused. On record the decision/letter in favour of therespondent No.2-informant of the State Government dated 10-12-2003 is also produced stating that plot No. 5 purchased byinformant is not in existence in view of revised layout. It wasdirected to get exact location of plot No. 5 fixed from the officeof Assistant Director Town Planning, Aurangabad and to get itsanction from Deputy Director Town Planning, AurangabadDivision. Thus, on this facts it is sought to be contended thatthe original accused-respondent No. 3 has sold the plot to thepresent petitioners and thereby informant is deceived and theapplication came to be filed under Section 319 of the Cr. P. C.6 of 12 (7)wp1181.2413.In the case of Kailas (supra) the Hon’ble Apex Courtconsidered the provision of section 319 of the Cr. P. C. It is heldthat during the trial it has to appear from the evidence that aperson who is not an accused has committed any offence forwhich such person could be tried together with the accused whoare being tried. It is considered that key wording ‘It appearsfrom the evidence’, ‘any person’ has committed any offence. It isheld that it is not merely because some witnesses havementioned the name of such person or that there is somematerial against that person. Discretion under section 319would be used by the court when it is satisfied that some offencehas been committed by such person.14.In the case of Bholu Ram (Supra) it is held that theapplication for summoning the additional accused can be filedeven by an accused. No time limit for filing such application isprescribed. 7 of 12 (8)wp1181.2415.In the case of Sukhpal Singh Khaira (Supra) fiveJudges Bench of the Hon’ble Apex Court considered the scopeof exercising power under section 319 of the Cr. P. C. 16.Considering all aforesaid judgments, it is clear that itis open for the court to summon a person who is not accused inthe case by exercising power under section 319 of the Cr. P. C.However, there needs to be some material appearing in theevidence to show that such person also needs to be triedalongwith accused persons in the trial. In the present case, it isthe allegation of the informant that he purchased the plot in theyear 1983 as per layout then in existence. Subsequently, accusedchanged the layout whereby the location and the description ofthe plot No. 5 was changed. After getting the layout revised, theaccused sold the same plot to the present petitioners. Furtherallegation is that after executing sale deed correction deed isexecuted thereby again the description of the plot is changed. Itis the allegation that thereby the informant is cheated.8 of 12 (9)wp1181.2417.Looking to the allegations it is seen that the plotbelonging to the informant is again sold to the presentpetitioners. There is no case that it is at the instance of thepresent petitioners layout is changed or that he had knowledgethat plot is already sold to the informant. Taking the facts as itis, it appears that plot which was already sold to the informant,as per allegations in the complaint, is sold to present petitioner.Further it is seen that the application was filed even beforerecording of the evidence of the complainant. The applicationwas filed on 16-03-2019 whereas evidence is recorded on 03-03-2022 on Exh. 27. The order dated 20-08-2022 passed belowExh.27 in RCC No. 154/2003 by the JMFC, Paithan was set asidewith liberty to pass an appropriate orders after recordingsatisfaction based on the evidence on record in trial. This orderwas passed in Writ Petition No. 1695/2022. It is thereafter, thelearned JMFC has passed the order dated 05-06-2024 on anapplication Exh.27.18.In between, the evidence came to be recorded on 03-9 of 12 (10)wp1181.2403-2022. Looking to the evidence of the informant, he statedthat he was deceived by respondent No. 3. Plot No. 5 in therevised layout was superimposed. In the said evidence no nameof the petitioners appears.19.From looking to the impugned order it is seen thatthe learned Magistrate noted that in the revised layoutdescription of the property was changed. The informant wasrequired to issue public notice not to purchase plot No. 5 insurvey No. 178. It is noted that after publication of the publicnotice, the present petitioners purchased the plot. The originalaccused sold the non-existant plot No. 7 and 7-A as per revisedlayout plan to the proposed accused persons. i.e. petitioners andone other on 12-10-2000. It is observed that said plots are notseen in the layout plan of 1974. It is observed that from thedocuments on record there is possible involvement of theproposed accused persons in creating false documents and theinvolvement of the proposed accused in commission of theoffence cannot be ruled out. An inference is drawn that the main10 of 12
Legal Reasoning
(11)wp1181.24accused has committed forgery and cheating causing wrongfulloss to the complainant in connivance with the proposedaccused.20.Considering section 319 and considering wording ofsection 319 this court has to consider whether there is anymaterial appearing on record against the proposed accused bykeeping in view of the ratio in the case of Kailas (Supra).21.Looking to the order it is clearly seen that the courthas only drawn an inference that a doubt is created aboutinvolvement of the proposed accused in an offence. The courthas not drawn a conclusion on the basis of material as such, buthas issued summons only on assumption by drawing aninference that the proposed accused are also involved. Thewording of the order itself shows that there is no sufficientmaterial on record. It is well settled that what is to be seen ismaterial on record without adding anything to it in bysubtracting anything from the same. The present order is an outcome of only inference and suspicion. Merely on the basis of11 of 12
Decision
(12)wp1181.24suspicion it cannot be said that persons are involved in theoffence. The Suspicion however, grave will not take place ofevidence. In the present case looking at the evidence of thecomplainant, it does not show direct involvement of the presentpetitioners. So far as forgery is concerned, there is no allegationsthat these petitioners have committed any act of forgery. Noinvolvement is shown of the petitioners in the actual forgery. Onthe contrary, revised layout is sanctioned by the Government.This court, thus finds that the order passed by the learnedMagistrate suffers from error of law. This court finds substancein the writ petition. The writ petition, needs to be allowed byquashing and setting aside the impugned order.22.In view of above, the criminal writ petition standsallowed in terms of prayer clause-B. [KISHORE C. SANT, J.]VishalK/wp1181.2412 of 12