Sachin Shantilal Parhe & others v. The State of Maharashtra & another
Case Details
- 1 - criwp957.23.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL WRIT PETITION NO. 957 OF 2023 Sachin Shantilal Parhe & others Petitioners Versus The State of Maharashtra & another Respondents Ms. P.R. Deshpande, Advocate for the petitioners. Mr. S. W. Munde, APP for the State. Mr. B. A. Darak, Advocate for respondent No. 2. CORAM : R. M. JOSHI, J. RESERVED ON : 27th SEPTEMBER, 2023. PRONOUNCED ON : 3rd OCTOBER, 2023.
Decision
ORDER 1. This petition fled under Article 227 of Constitution of India takes exception to the order of framing of charge below Exhibit 36 in Sessions Case No. 77/2016 by Additional Sessions Judge, Beed, for offences punishable under Sections 498-A, 323, 313, 504, 506 read with Section 34 of Indian Penal Code. 2. It is the contention of petitioners that respondent No. 2 fled complaint with Shivaii Nagar Police Station, Beed, being Crime No. 56/2015 against petitioners and three others. It is the contention - 2 - criwp957.23.odt of the complainant that she was married to petitioner No. 1 on 25 th February, 2008 at Beed and they started cohabiting with the other family members. It is alleged by her that she was ill-treated and was driven out of the house on 11th November, 2008. Allegation is also made by her that her miscarriage took place in the month of July 2008 due to the mental and physical torture received by her at the hands of petitioners and other accused persons. After completion of investigation, charge-sheet came to be fled and case was registered as Sessions Case No. 77/2016. Learned Additional Sessions Judge, Beed, framed charge against the accused below Exhibit 36 on 30 th January, 2020. 3. Learned counsel for petitioners seeks challenge to the order of framing of charge essentially under Section 313 of Indian Penal Code. It is his contention that bare perusal of First Information Report does not show commission of offence of causing miscarriage of respondent No. 2. By referring to Section 312 of Indian Penal Code, it is contended that in order to attract the said offence, there has to be some positive act on the part of the accused in order to cause miscarriage and occurrence of miscarriage by itself will not attract offence punishable under Section 313 of Indian Penal - 3 - criwp957.23.odt Code. It is submitted that there are no specifc allegations against petitioners or other accused which has led to miscarriage. It is submitted that the allegations against them are as vague as possible and any amount of evidence lead by the prosecution will not establish guilt of the petitioners for the said offence. It is submitted that merely because application for discharge fled by petitioners has been reiected, it will not come in way of challenging the order of framing of charge as scope of Sections 227 and 228 of Code of Criminal Procedure is different. It is submitted that on the basis of allegations on record coupled with the evidence in the form of statement of witnesses, it can never be held that any offence punishable under Section 313 of Indian Penal Code has been committed by the petitioners and hence, order of framing of charge to that extent deserves to be interfered with. 4. Learned counsel for respondent No. 2 opposed said submission by pointing out that petitioners herein have suppressed the fact that discharge application fled by them has been reiected by the Trial Court and the said order has not been challenged before any higher forum as a result of which the same has attained fnality. It is submitted that once the application for discharge has been reiected, - 4 - criwp957.23.odt it is not open for the petitioners to challenge order of framing of charge against them. Apart from this, it is submitted that even allegations made in the First Information Report are suffcient to raise suspicion against the petitioners and hence it is open for the Court to frame charge. It is also argued that it is immaterial as to whether the petitioners can be convicted for the said charge or not. 5. Learned APP also opposed the submissions by pointing out that charge has been framed in the year 2020 and the present application is fled in June 2023 which clearly indicates that this is nothing but an attempt to delay the trial. 6. Perusal of record indicates that an application came to be fled by the petitioners before the Trial Court under Section 227 of Code of Criminal Procedure seeking discharge. The said application Exhibit 19 was reiected vide order dated 10th July, 2019. There is no dispute about the fact that the said order has not been taken exception to and as such it has attained fnality. Though it is sought to be canvassed by learned counsel for the petitioners that there would be material difference in application of Sections 227 and 228 of Code of Criminal Procedure, however, if the scheme of Chapter - 5 - criwp957.23.odt XVIII of Code of Criminal Procedure is perused, then it is open for the accused to seek discharge under Section 227 of Code of Criminal Procedure, before charge is framed. In case accused fails to make out any case for discharge, framing of charge is inevitable. Moreover, since the petitioners have not challenged the order of reiection of discharge, it is now not open for them to take exception to the charge framed against them. Even otherwise, for the purpose of framing of charge, it would be suffcient for the Trial Court to consider that from the material on record, there is strong suspicion against the petitioners, which may necessarily not result into conviction of the petitioners. Prima facie perusal of the complaint indicates that there are specifc allegations against the petitioners herein that inspite of having knowledge about pregnancy being carried by respondent No. 2, she was mentally and physically harassed/tortured which has caused her miscarriage. At this stage, this Court also need not go into the aspect as to whether the statement of informant/respondent No. 2 would be suffcient to seek conviction of the petitioners for the offence punishable under Section 313 of Indian Penal Code or not, as weighing and sifting of material evidence on record is not permissible at this stage. - 6 - criwp957.23.odt 7. Thus on both grounds i.e. exhausting remedy of discharge unsuccessfully by petitioners as well as considering the prima facie material on record which is suffcient to frame charge against them, the challenge to order of framing of charge cannot sustain. 8. 9. disposed of. dyb In the result, writ petition stands dismissed. Pending application, if any, does not survive and stands ( R. M. JOSHI) Judge