High Court
Facts
cran3116.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD1 CRIMINAL APPLICATION NO. 3116 OF 2023Arun Vishnupant BhagyawantVERSUSThe State of Maharashtra and another...Advocate for Applicant : Mr. Rahul G. Joshi h/f Mr. S. N. LaleYelwatkarAPP for Respondent No.1: Mr. S.A. Gaikwad Advocate for Respondent No.2 : Mr. A.P. Raka ….. CORAM:SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATED:28th FEBRUARY, 2025 PER COURT :- 1.The present application has been filed for quashing theproceeding in R.C.C. No. 126 of 2023, pending before the learnedJ.M.F.C. Jafrabad, district Jalna, arising out of F.I.R. vide C.R. No. 73of 2023 dated 14.04.2023, registered with Jafrabad police station, forthe offences punishable under Sections 323, 324, 504, 506 r.w. 34 ofI.P.C. 2.Heard Mr. Joshi h/f Mr. Lale, learned advocate for theapplicant, learned A.P.P. for respondent No.1 State and Mr. Raka,learned advocate for respondent No.2. 3.Learned advocate appearing for the applicant has taken us cran3116.23-2- through the contents of the charge sheet, including the F.I.R.. It issubmitted that there is a long standing dispute between the applicantand the family of respondent No.2. He has filed Regular Civil SuitNo. 23 of 1999. The matter had come upto this Court and it is stillpending i.e. second appeal No. 125 of 2008. He has also pointed outthat different F.I.Rs. are filed either by him or by other side. Since somany years, there is enmity and with that background the incidenthad taken place on 12.04.2023. He had then lodged the F.I.R. on13.04.2023 vide C.R. No. 71 of 2023 for the offences punishableunder Sections 324, 323, 504, 506 r.w. 34 of I.P.C. against presentrespondent No.2 and her son. However, respondent No.2 had thenlodged the present F.I.R. on 14.04.2023 i.e. C.R. No. 73 of 2023belatedly to give a counter blast. Though it is stated that respondentNo.2 and her son were assaulted by the present applicant and threeothers, yet charge sheet has not been filed against one i.e. son of thepresent applicant. When on the same set of facts, the police haddecided not to file charge sheet, stating that there is no evidence tosupport the contentions of the informant then, same Rule ought tohave been made applicable to the applicant. The Medico Legal Injurycertificate of the informant as well as her son would show that therewas no injury to both of them. In the F.I.R. it is stated that stick hasbeen used for causing assault but in order to prove the offence undersection 324 of I.P.C. there has to be at least simple injury but that is cran3116.23-3- also not there. Rest of the sections are not cognizable. Therefore, itwould be unjust to ask the applicant to face the trial. 4.Per contra, learned A.P.P. submits that since there arecross cases, let there be a trial so that all the points can beconsidered as to who was aggressive and which offence has beenactually committed. Since there are cross complaints, the presenceof the applicant at the spot at the relevant time cannot be challenged.5.Before we proceed, we would like to observe that when wehad heard the matter for some time on 14.02.2025 and pointed outthat in the injury certificate it is stated that as no injury was found onthe person of the informant and her son, we directed the learnedA.P.P. to get the original medical examination register from RuralHospital, Jafrabad. Accordingly, the M.L.C. book of the relevant yearand the relevant date has been made available. In fact, we areshocked to know the manner in which the said register has beenkept. There is no column in the register which would show the detailsof injuries. The columns in the said register are not matching to thecertificate that has been issued. It has been stated that all entries aretaken like that. Then the question comes in respect of crosscomplaint filed by the present applicant as to whether his name isappearing in the said book and what were the injuries, those were cran3116.23-4- caused to him and how they are noted. We are unable to get thedetails of the injuries in the register but the Medical Officer has thenannexed OPD papers of the applicant, wherein the injuries arestated. Learned A.P.P. submits that he had made query to theconcerned Medical Officer as to how then he would get details of theinjuries, the learned A.P.P. was informed that the concerned hospitalkeeps the O.P.D. papers with it and on the basis of O.P.D. papers,the register is made. Then the question was asked by us as towhether there is O.P.D. paper of the present respondent No.2 andher son, it is now disclosed by learned A.P.P. that some papers couldnot be traced and the Medical Officer is tracing those papers.Maintaining of register in such a form is certainly prejudicial to allpatients. In case of loss of O.P.D. papers, it would certainly create aproblem and injustice to the patients. We would be taking up thatmatter separately but suffice it to say that at this stage as regards themedico legal injury certificates of the informant and her son disclosethat there was no injury. Therefore, question of invoking Section 324of I.P.C. will be out of question. When the M.L.C. was collected priorto filing of the charge sheet, then the investigating officer ought not tohave filed the charge sheet, as the ingredients of offences are notmade out. For proving the offence under section 324 of I.P.C. therehas to be a simple injury caused by instrument for shooting, stabbingor cutting or any instrument, which used as a weapon of offence, is
Legal Reasoning
cran3116.23-5- likely to cause death. Here the weapon that is alleged to have beenused is a stick. The spot panchnama shows that the stick wasrecovered from the spot. The dimension of the stick is 72 cm long.What was the width or diameter of the stick is not disclosed. The stickis not an instrument for shooting, stabbing or cutting. The stick perse will not even cause death unless part of the body on which itsassault is made is a sensitive part or assault is vigorously made.Therefore, taking into consideration the weapon, allegedly used in thecommission of the crime in the present case and there was no injuryto the informant and her son, we are of the opinion that theingredients of the offence under Section 324 of I.P.C., which is theonly cognizable offence, was not made out. The other offences arenon cognizable. 6.It appears that there is a rivalry/continuous dispute betweenthe present applicant and respondent No.2’s family, however, theenmity is double edged weapon. When there is F.I.R. that waslodged, though may be prior in time to the present F.I.R., the previousenmity and the counter blast cannot be the ground to quash the F.I.R.and the proceedings. There are statements of witnesses recorded inthe matter but the witnesses have stated that the present applicantassaulted the informant and her son by means of stick, but asaforesaid, the said assault by stick cannot be said to be covering the cran3116.23-6- ingredients of offence under Section 324 of I.P.C. and therefore, evenif those statements are in favour of the prosecution, yet they do notattract the ingredients of Section 324 of I.P.C. Only non cognisableoffences would remain for which the F.I.R. is not maintainable butthere should be a private complaint. With these reasons, theapplication stands allowed. 7.The proceeding in R.C.C. No. 126 of 2023 pending beforethe learned J.M.F.C. Jafrabad, district Jalna arising out of F.I.R. No.73 of 2023 dated 14.4.2023 registered with Jafrabad police station,district Jalna, for the offences punishable under Section 323, 324,504, 506 r.w. 34 of I.P.C. stands quashed and set aside. 8.In view of our observations in respect of M.L.C. book,before further action is taken or directions are given, we direct theCivil Surgeon, Jalna to visit few more Rural Hospitals or PrimaryHealth Centers in the district and check as to how M.L.C. books aremaintained there. He may take photo copies of register maintainedthere and file an affidavit on the point whether there is uniformity inmaintaining the record i.e. register in respect of M.L.C. book, for howmany years they are preserving the O.P.D. papers, why there is adiscrepancy between the columns in M.L.C. register and the MedicoLegal Injury certificate, those are issued to the injured persons or the cran3116.23-7- police authorities in connection with the crime. He may also explainunder which provisions of law the M.L.C. book is directed to bemaintained or whether there are Government circulars setting forththe format of the M.L.C. book and if it is there, then why the booksare not maintained in that format. Such affidavit to be filed on orbefore 18.03.2025.9.Place the matter for further consideration on 24.03.2025. (SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)rlj/